shouting loudly

April 26: World Intellectual Mockery Day

Via a friend, I recently chuckled at a proposed mockery of WIPO’s World Intellectual Property Day.

With the permission of the author, Peter Maybarduk (a songwriter and musician who is a 3L at Boalt Hall), here is his proposal for “World Intellectual Mockery Day,” as well as a fine mini-treatise on the negative effects of copyright law on the music industry:

Each year on April 26, governments and organizations around the world join WIPO in celebrating World Intellectual Property Day. Our theme this year is encouraging creativity. … It is the intellectual property system itself which sustains and nourishes those creators.

LOL!

Oh! So true! I know when I sit down to write a song, 9 times out of 10 its inspired by my undying love for copyright, that’s just swelling in my heart, and, and, I simply have to find some way to express it, and share the beauty of IP law with everyone!

I mean, it’s not like there’s any empirical evidence of human creativity before IP, oh no. The dark ages were they.

On April 26, I think I’ll throw my own little private celebration. It’ll be, “World Intellectual Mockery Day.” You are welcome to join me in a toast. Nourish me, oh copyright.

Here’s a little rant/weekly response paper I turned in for a class last semester:

[Editor’s note: I have added several carriage returns to increase online readability.]

Peter Maybarduk
November 2, 2006

Brief Comment: Creativity and Culture in Copyright Theory, Julie E. Cohen

Rights-based and utilitarian philosophies of copyright tend to view creative process as isolated, individual work derived from an initial, ephemeral spark of inspiration. Julie Cohen argues that because these classical views do not appropriately account for culture’s role in shaping, inspiring, and constraining creativity, or for the cumulative and social nature of much creative production, they have provided us with a copyright regime that, among other things, unduly restricts our capacity to engage artistic works collaboratively and creatively ourselves.

For example, restrictions on derivative works such as fan fiction prevent society from engaging a shared knowledge base (the original work) in a creative manner (retelling) so as to explore the connections between fictional stories and our stories, and derive new insights about our lives. I agree with all of this. But I would also favor discussing a distinct set of reasons that copyright constrains creativity, creative communities, and broad public participation in creative work.

Copyright not only provides compensation for artists, but facilitates the exploitation of multiple exclusive rights for a long period of time. This creates adequate financial incentives for industry to develop around creative works. Industry facilitates the production and distribution of ideas. But industry most easily attains profit by disproportionately marketing a few artists to the world at large. That is, publishing firms and record companies know that it is cheaper to run one marketing campaign than multiple campaigns, and that if an artist reaches a certain critical mass of fame, sales will continue to increase exponentially as word of mouth spreads and the artist becomes a cultural staple and celebrity “brand.” Below that critical mass, artists sell to niche markets, which are at best steady but unimpressive sources of revenue for industry.

As Cohen notes (p.40), sharing certain cultural staples can be beneficial for society at large. The lives and works of superstars enter our daily parlance, providing for common reference and increasing our sense of cultural unity – no small trick in a nation of 300 million. But it also comes at a cost. Space to showcase creative work is rivalrous. Though slots on the internet and cable television may be practically limitless, there are vast differences in the amount of traffic coming to any given site.

When P.Diddy appears simultaneously on television and radio in San Francisco and New York, in West Virginia and Ghana, it cuts into the time those frequencies can give to a broader array of artists, including local artists. Further, though the purchase of a P.Diddy record may not preclude a consumer from buying a different artist’s record (and there is an extent to which lesser known artists piggyback off periods of high sales for superstars, not to mention that the entertainment industry creates some new markets), there is a limit to the time, money and attention any given person is likely to give to the arts. Some of the market space and public attention occupied by superstars would otherwise host a broader community of artists.

This can injure a society’s creative commons in two ways: it decreases the diversity of creative works, and it exacerbates the distance between consumers and creators. Cohen’s article describes the cultural production of art and emphasizes a societal interest in interacting creatively with artistic ideas.

The superstar phenomenon creates the cultural impression that artists occupy a plane removed from our own, and that only incredibly rare individuals can make worthy art. It reduces most peoples’ belief that worthwhile art is being produced by those around them (”If it were any good, I would have heard of it”), and as a result reduces many artists’ faith in their own work over time (”No one cares, and I can’t make a living at this”).

The vast financial possibilities of copyright facilitate this transformation of art into a multinational entertainment industry. Entertainment as an industry tends to remove the production of art from the personal and community sphere, and elevates it to a segregated, esoteric multinational platform.

Fundamental changes to copyright law might reduce the power of business and enhance the relative power of artists and artist communities, thereby leveling the marketing plane, increasing the number of artists receiving exposure, and returning art to its place in community cultural production. For example, restricting the alienability of copyrights in music would help artists retain creative control (songwriters today have little option but to sell their rights to record companies, or be passed up for the next artist who will). Reduced duration of copyright would make blockbuster works somewhat less profitable for industry, perhaps creating room for competition from lesser-known works.

I am a songwriter. Copyright does not inspire me to write; I write because I must in order to interpret and lend meaning to events in my life. But producing a record of my songs is expensive. I will release my first record this month, it will have cost me $8,000.

Copyright provides some incentive to complete a record, but it will only help me if the record is quite successful. Until I am successful enough to license my music or enforce rights against its widespread copying, copyright will not make me any money. I will have to sell music directly to people I meet, who hopefully will share my music with others and help my reputation grow. It actually helps me if I surrender my exclusive rights to my first circle of listeners, so that they share as much as possible, and more people hear my music.

Copyright also hurts me because an exceptionally profitable industry has grown up around it. The entertainment industry surrounds and manages much of the space I would like to enter, most especially the consciousness of my potential listeners, many of whom today will only compare me to internationally renown acts spending $100,000 on each album, and far more on tours and music videos.

Because I am not known, many potential listeners will be hesitant to listen that first time. And being familiar with my songs will not enable listeners to jump into a national dialogue replete with common entertainment references. For me - a content creator – copyright is a critical component of an industry that makes it difficult – and sometimes painful - to pursue my art.

Cohen is correct to explore the social and contextual dynamics of creativity and their implications for copyright law. Unfortunately, I believe the necessary reforms extend beyond rights to retell.