Are You Get(ting) Lucky?: The Value of Remix Culture

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Every couple of years, there is a pop song that hits American culture with a boom, touching a musical creativity nerve center, leading to multiple remixes, covers, dance covers, etc. Single Ladies. Call Me Maybe. And earlier, Thriller. (If we delve deeper directly into less mainstream hits, into subcultures, there are many more frequent examples, from k-pop dance covers to high camp versions of Kylie.)

But what the mainstream songs that even grandmas know have in common is that the cultural acceptance and appropriation was simultaneously visual (in repeating the dances/video) and auditory (with the inclusion of the music/singing). The responses to the cultural response frequently is that the covers are just repetitive – lacking in true creativity.

One advantage in analyzing the creativity surrounding Daft Punk’s Get Lucky is that the original visuals doesn’t matter to the re-imaginings at all. This allows the public to focus on the brilliance that is possible with just the reuse and re-purposing of the music.

Yes, some of the versions are more traditional cover versions, in the vein of coffee shop crooners (or Wilco). Or mashups.

But many more are more complex. Some of my favorites combine the song with matching dances from Soul Train, demonstrating how well the song would have done in a funkier era. But it also shows how far pop music has come from a point where normal people would get down publicly to music, music with enough of a groove to make this possible. This type of nostalgia for a time of dance culture before created (most likely) by those that are too young to have experienced the 70s (and specifically centered around Chicago Black dance culture) is reminiscent of R. Kelly’s “Step in the Name of Love” (and this may be the only time I ever say anything positive about him)

Other reimaginings are more complex, including having five piano players play the song – or imaginary versions of how the song would have sounded like in different decades.

This type of creativity is broader than the still-existing norms for remix culture. For those involved in remix/appropriation culture, no example I have for Get Lucky is *that* surprising, or something they haven’t seen before. But it isn’t the remixers that need convincing to change the standard or burden for fair use – it is content owners – and computer algorithms, such as those on YouTube.

All of these works **are** transformative – all of them have the original and change it into something new and different. Instead of stripping away the economic value of the song, they have increased it. Fans found this song meaningful and “made it their own”, helping others find the fun as well.

Another important point is that many of these remixes equally rely on other source material. The Soul Train video remixes cannot exist without that line of dancers – it takes both to make it happen.

And there is the Black Simon & Garfunkel (AKA The Roots) version.

The wellspring of creativity especially around pop music has not run dry. Instead, it is imperative to see these new types of creativity as true creativity and deserving of the protective bubble of fair use.

The Center for Social Media at American University has several great best practices for use with remix culture, including codes of best practices for journalism, online video, and documentary film. While the code for online video does touch on some of the issues in the creation of these remixes, it doesn’t (and can’t) deal with all of the complexity involved in remixing music.

DJ Culture is not just a Pet Shop Boys made-for-the-greatest-hits single, it exists. And interestingly, Daft Punk, in taking a huge leap forward for electronic dance music have allowed for an even greater flourishing of creativity — and hopefully a greater acceptance of this type of musical (remix) process.

I read a book: Cognitive Surplus: Creativity and Generosity in a Connected Age

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Until recently, Clay Shirky was best known as the author of Here Comes Everybody: The Power of Organizing Without Organizations. The book  was widely praised (seriously, Boing Boing calls it a “masterpiece”) and is still referenced  by social media strategist/expert/guru types as a must-read for anyone looking to explore the social dynamics that drive the use of technology, which at the time (and even now, to a certain extent) is not what drives most conversation about the internet and social media in particular.

Rather than focusing the catalyst of online social behavior on specific technologies  (i.e. what makes Facebook so popular?) Shirky argued that social tools facilitates common group behavior, conversation and social interaction. At the time, the beginning of Facebook’s online dominance and in the midst of growing fascination and panic about social media from the mainstream press. Shirky presented a reasoned, articulate and well-researched argument that the idea of “crowdsourcing” was not a new idea, but actually rooted in common, even traditional social interaction. The Internet just made that interaction happen more widely and more rapidly.

If you talk to any social media/internet  ”expert” or “enthusiast” these days, this perspective is seen as common knowledge, but without Shirky’s well-presented theory and research to bolster this theory it wouldn’t have taken root.

In 2010, you’d think that this argument wouldn’t need repeating or clarification, but as traditional media continues to evolve and digital use continues to grow and become more ubiquitous, the panic of social theorists and mainstream media commentators continues unabated. The continuing debate of whether the Internet makes you smarter or more stupid seems to have a new chapter each day, but in Cognitive Surplus, Shirky’s latest book, he does add fuel to that fire, but also offers a modified version of his Here Comes Everybody thesis: The Internet has given us the tools to create, publish and share media  faster, cheaper and with more people than ever before

Shirky’s revised thesis is the reason that I think Cognitive Surplus is a must-read (there’s that term again) for media professionals in every field.

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Transformative Reinterpretation or Total Rip-off?: Namie Amuro and Copy That

At what point is copying

  • homage (as a way of honoring and being respectful of the original)  even through direct copying?
  • transformative (in the traditional copyright sense) as building upon the original to create new meaning?
  • or copying as a means of economically exploiting copyrighted works?

This first post in a series about the difficulties in making this distinction focuses on three different examples of how difficult it is to carefully draw these lines, focusing on Japanese pop star Namie Amuro’s Copy That (official Vidal Sassoon music video-ish commercial above), and later posts will focus on Glee’s Madonna and Lady Gaga episodes, and Christina Aguilera’s Not Myself Tonight video (and dance responses), and other similar situations.

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‘Cause we’re freak remixers baby!: Lady Gaga and remix culture

On this blog, we write often about the value of fan-created works, about how fans use their creativity, using works created and owned by others. And fans of Lady Gaga has been very busy, remixing and reusing both the video and song, Bad Romance. They vary in quality and skill, but most convey the message of “This is so cool — and I want to be part of it!”

Additionally, complicating matters, legally there is a difference between the use of a work in the entirety (such a cover version) and sampling, and between using the style of a video and the music — but for fans, these distinctions don’t exist. And the parody (making fun of this work) / satire (using one work to make a statement about something else), truly falls apart in the midst of montage/collage/remix culture, where one work can simultaneously have multiple messages.

Two years ago, American University’s Center for Social Media released a study, Recut, Reframe, Recycle: Quoting Copyrighted Material in User-Generated Video, suggesting strongly that remix culture is not only socially acceptable, but should also be legally acceptable because transformative reuse falls within the fair use exception/defense to copyright.

Lady Gaga’s Bad Romance song and video have proven to be the source material for all but one type of the nine types of reappropriation discussed in the study.

The types — in order of their frequency in my wholly non-statistically valid study (i.e. I watched lots of videos!), considering different types can exist in the same video:

  • Pastiche or collage: Several copyrighted materials incorporated together into a new creation, or in other cases, an imitation of sorts of copyrighted work: I subdivide these works into two different categories — the homage and the sample — both used extensively by remixers of Lady Gaga’s work.
  • Positive commentary: Copyrighted material used to communicate a positive message: Such as taking the “We traveled 10,000 miles to say we love you, Lady Gaga” approach.
  • Parody and satire: Copyrighted material used in spoofing of popular mass media, celebrities or politicians: Lots of examples, but have yet to find a good one.
  • Negative or critical commentary: Copyrighted material used to communicate a negative message: Many of the parody/satires included negative views of Lady Gaga, especially her physical appearance.
  • Quoting to trigger discussion: Copyrighted material used to highlight an issue and prompt public awareness, discourse: Such as commenting about Lady Gaga’s support of the GLBTQ community
  • Illustration or example: Copyrighted material used to support a new idea with pictures and sound: Such as quick, small, samples.

For these next two types, I don’t have examples below the jump — considering the always existing threat of takedown notices, I don’t want to be responsible for publicly pointing out kids having fun at concerts!

  • Personal reportage/diaries: Copyrighted material incorporated into the chronicling of a personal experience
  • Incidental use: Copyrighted material captured as part of capturing something else

The one type missing missing from these reuses is:

  • Archiving of vulnerable or revealing materials: Copyrighted material that might have a short life on mainstream media due to controversy. While Lady Gaga is controversial, there isn’t a need to archive this specific time.

Below are examples of some of these varied uses of the original — starting with the original official music video — from the official YouTube Channel.

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I Read a Book: Greg Kot’s Ripped: How the Wired Generation Revolutionized Music

Greg Kot’s Ripped: How the Wired Generation Revolutionized Music is a must-read for those interested in how economics combined with listener actions have led the traditional music industry to its present morass. And therefore, the subtitle should be: How the music industry decided short-term profits were more important than life-long fans.

While I prefer a more linear style, the book is written in chapters focusing mostly on one artist or group per chapter — which makes sense, considering this is a work of music journalism. I appreciate that Kot, a non-lawyer, explains the law and cases correctly (yet with the dismayed “this is really the law?!?” tone needed). And while not using the terminology of one thousand true fans, he explores what having dedicated fans means for bands now — versus under the old regime.

But there are some seriously odd moments while reading as a fan. I’m not really sure why when describing the backstory of Metallica, Dave is mentioned, but there is literally no mention of Kirk! (Or Cliff. Or Jason.) But I’m digressing…

I expect a certain degree of errors in any work, but please, dude, know your halos! Any NIN fan knows that Broken counts. Especially when writing about T.R.’s dealings with record companies.

Commercial versus Non Commercial use?

Creative Commons licenced work by dbking

Creative Commons licenced work by dbking

Due to the difficult line determining what is commercial and non-commercial use of copyrighted materials, Creative Commons has recently completed a study regarding this issue — with surveys of both content creators and users (PDF full report here). This study has lots of interesting  information for the fan-creative-remix community.

The study’s findings include that

Many group participants noted that there are promotional and thus potentially economic or commercial advantages to creators in connection with releasing content freely for noncommercial use. For these creators, “credit” for permitting noncommercial use is very important, and the question of attribution is something that gets factored into their consideration of when a use is acceptable. … As a practical matter, many seem to consider noncommercial use as having minimal or indirect commercial impact, rather than absolutely no commercial impact.

What about users?

As do creators, users often approach the question of noncommercial use on a case-by-case basis. Paralleling many creators’ approach to deciding when to allow or license a noncommercial use, many users also explained they use content guided by their own principles or personal rules of thumb, or in accord with practices followed by other users, which they hope creators are more likely to accept, on a “safety in numbers” theory. Verbatim examples of how some users articulate their understanding of when a use is noncommercial include:
· “if it’s for education or personal use”
· “if it does not compete – noncommercial is really non-compete”
· “if the creator is getting promotional value”

Jessica Litman in Lawful Personal Use suggests that personal uses of copyright works arguably *is* outside of copyright protection.

So how does the study respond? It alows for leaning towards that direction:

users are much more likely than creators to rate personal or private uses as noncommercial, and there is strong consensus among users on this point. Thus this particular use scenario, at least as rated by users, stands out from all the others as being the most ‘definitively’ noncommercial …. Creators also agree that personal or private uses are the least commercial of all scenarios measured, but it is striking to have this one instance in which users believe the use is even less commercial than creators.

I got my propaganda, I got revisionism: Book Review: Che’s afterlife : the legacy of an image

Is art (always) resistance?

Popular version of original photo by Korda

The paradox is to wield Che in an attack on [capitalism], its critics must participate in it. They engage in the act of consuming Che.

As Michael Casey describes in his excellent social history, Che’s afterlife : the legacy of an image, the meme of one captured moment in the life of Argentine/Cuban revolutionary Ernesto (Che) Guevara has an amazing cross-cultural resonance (pdf). According to the curator of a 2006 art exhibit of Che-based art, this is the most reproduced image in the history of photography.

Casey says that

Che is now everywhere. In its common form as a two-tone abstraction of Alberto Korda’s famous 1960 photograph, his image is simultaneously a potent symbol of resistance in the developing world, an anti-globalization banner, and a favored sales vehicle among globally engaged marketing executives.

Jim Fitzpatricks Che

Jim Fitzpatrick's Che

So how did this happen? The book details how while

the compelling events of his real life and the story of its violent end perpetuated his legacy, it took the mass replication, reproduction, and marketing of the Korda photo to years later transform him into a pop superstar of immense iconic pow

But this visual meme happened due to a confluence of influences:

Political opportunism, the publishing industry, photography, silk-screening, pop art, graphic design, computers, the Internet, copyright laws, and consumer-marketing theories have all collaborated in the maintenance of Che’s afterlife.

According to Susan Scafidi on Counterfeit Chic, the flattening of the original meaning has been flattened in a way to allow for all of these varied meanings:

The specific message of the image, however, has decreased in inverse proportion to its popularity. Viva la revolucion? Power to the people? Overthrow the capitalist pigs? Or just a dramatic, vaguely rebellious image? You decide.

The Warhol Che -- though not created by Warhol, nevertheless authenticated

The "Warhol Che" -- though not created by Warhol, nevertheless authenticated

This book has much to give to those interested in history, art, marketing, and the flow of culture, and especially appropriation art, but it also has lots of interesting gems regarding intellectual property — including moral rights. Because the author isn’t a lawyer, sometimes he doesn’t always use the correct law-talking terminology, but the description is vivid.

For example, Casey discusses the complicated issues surrounding the picture to the right. Taken from the Fitzpatrick art print of the original photo, an anonymous artist created a work that was attributed to Warhol — who then certified the work as authentically Warhol — even though it wasn’t!

But where Casey really explains the complexity of intellectual property and its relationship to culture is when he describes how the copyright and trademark of the image is now closely protected, though

During the preceding thirty-seven years of legal inaction, the image effectively roamed the world copyright free as producers of derivative art exploited it without paying fees. It functioned much like an open standard …it was a freely available template to which others could apply their inventive talents. This de facto public domain status facilitated an explosion of creative expression, as artists, satirists, and political commenters took to the image with glee. Some were faithful to the Cuban government’s socialist representations of Che; others not. Neither group had to worry about lawsuits.

The present situation of public domain versus ownership of the image is complicated by differing international standards concerning the copyright (Cuba had rejected copyright in 1967), trademark, and moral rights. Casey expands on how the IP-protected version of  “Che” competes with the publics version of Che — and how difficult it is to undo the public ownership idea of this image.

And according Ben Ehrenreich in the L.A. Times, Che continues to influence us, claiming that Fairey Obama poster is based on the famous Che imagery:

Fairey’s Obama is not wearing a beret, and he’s looking left instead of right, but his face tilts at the same angle as Che’s. His jaw is set with the same willfulness and strength, and he too is gazing recognizably upward into the future …. Obama’s eyes, though, are filled not with righteous anger but with vague and lofty hope.

So that does mean that the Hope poster is really a mashup between Che and the AP photo? It seems at least it is intended to be at least evocative of our cultural memory!

Center for Social Media’s Best Practices: Now in tasty video format!

The Center for Social Media just released the above video, Remix Culture: Fair Use Is Your Friend, to help illustrate the Code of Best Practices in Fair Use for Online Video, that was released in July 2008. While I’m glad that there are best practices that address the interests of other communities, having a best practice guide for remix culture is so important — considering the community is so diverse and diffuse!

The video identifies six types of potential fair use :

  • Commenting or critiquing of copyrighted material
  • Use for illustration or example
  • Incidental or accidental capture of copyrighted material
  • Memorializing or rescuing of an experience or event
  • Use to launch a discussion
  • Recombining to make a new work, such as a mashup or a  remix, whose elements depend on relationships between existing works

The Fair Use Code is one of the “best practices” created by the Center, including:

There are other best practices guides including:

While the best practices can’t state something is or is not fair use definitively, by offering guidelines these best practices help people who are being creative understand what are the reasonable limits of fair use. One of the advantages of the best practices is that they are limited to within communities, thereby allowing the best practices to be  based on how people actually use materials within their community. But the best practices are not only for those in the community, but also for outsiders who set limits on distribution of created works, such as insurance companies (documentarians!) and ISPs (responses to takedowns).

And if you want a snapshot of remix culture from about two years ago, take a look at this video by the Center for Social Media!

Book Review: David Bollier’s Viral Spiral: how the commoners built a digital republic of their own

David Bollier’s Viral spiral : how the commoners built a digital republic of their own is a very good book with a horrible title. While there are many books about various elements of free/open-source software (like GNU/Linux), Creative Commons licenses, peer production (remix and mashups), and open models for success (Wikipedia, open science, open education, and open business), I think this is the first book to discuss these within the context of a social history.

So why is a social history so important? There are other books that discuss what the commons is or what it could be, but this is the first book to truly try to capture the process of creating the framework for the commons by theorists and practitioners. In reading several sections, especially on Creative Commons, I felt like I understood better how the process evolved. Where we are now doesn’t just happen, people create it, and there are missteps and corrections made. Viral Spiral helps to see the warts-n-all process, rather than just showing things as they are now.

So what are the issues with the book?

First, the term, viral spiral. Just no. Bollier does make a good argument for his term — but it just doesn’t have the right sound to it — or capture the holisticness of the idea. My suggestion would be participatory meme (but even that doesn’t quite get there). Maybe Henry Jenkins’ term, convergence culture?

Viral spiral is apt … because it suggests a process of change that is anything but clean, direct, and mechanical. …  Life on the Internet does not take place on a stable Cartesian grid—orderly, timeless, universal—but on a constantly pulsating, dynamic, and labyrinthine web of finely interconnected threads radiating through countless nodes. … Viral spiral calls attention to the holistic and historical dynamics of life on the Web, which has a very different metaphysical feel than the world of twentieth-century media.

Second, considering my interest in fans and fandom, it is interesting how few mentions of fandom there are in the book — excepting musical fandoms. There is the requisite Nine Inch Nails Ghosts mention and a discussion of the Grateful Dead bootleg policy (but no mention of the subsequent changes in policy).

Relatedly, there is nary a mention of pre-internetz created remix / fanworks forms such as vidding and fanfic — and therefore, this social history is incomplete, especially as related to (often-gendered-as) girl or women commoning activities. Additionally, since the book focuses on the names that made this possible (important for a social history), it ironically glosses over many of the small contributions of the commoners.

The gaps in the social history exist, but everything that is in this book is valuable, and likely would be lost but for this book. And this is the win quote from the book:

Individuals working with one another via social networks are a growing force in our economy and society. The phenomenon has many manifestations, and goes by many names—”peer production,” “social production,” “smart mobs,” the “wisdom of crowds,” “crowdsourcing,” and “the commons.” The basic point is that socially created value is increasingly competing with conventional markets, as GNU/Linux has famously shown. Through an open, accessible commons, one can efficiently tap into the “wisdom of the crowd,” nurture experimentation, accelerate innovation, and foster new forms of democratic practice.

This is why so many ordinary people—without necessarily having degrees, institutional affiliations or wealth—are embarking upon projects that, in big and small ways, are building a new order of culture and commerce.

The book has a Creative Commons license and is available as a free e-book; however, it is only available as a whole — rather than also as individual chapters. I understand this way makes statistical analysis of downloads easier — but sometimes one only wants to look at one chapter — or references!

The problem with decontextualization of intellectual property’s cultural role, or why an algorithm cannot determine fair use

Ignoring cultural context has led to some incredibly bizarre cease-and-desist notices recently. Yet intellectual property and culture are tied together. New works are not created Zeus-like bursting forth Athena-style ahistorically with no need for citation or attribution.

In a recent post on the University of Chicago Faculty Blog discussing the need for social and cultural theory in analyzing intellectual property, Madhavi Sunder quotes Henry Jenkins in Convergence Culture, that it is a

“paradoxical result” where “works that are hostile to the original creators” have “greater freedom from copyright enforcement than works that embrace the ideas behind the original work and simply seek to extend them in new directions.” (190)

While technically this is true in the American context, considering that fair use more carefully covers parody than homage, the new non-human computerized “catch-a-copyright-tiger (read pirate!)” lumps all uses together, whether it is one or a combo of:

fair use, parody, satire, homage, send-up, take-off, quoting, remix, mashup, sampling, fanmade, or any other arguably legal use here.

So what does this mean in real life?

Laurence Lessig’s video above has been blocked by YouTube — it is available here from another video service. And why?

“Your video, Part 2: Lawrence Lessig – Getting a Network the World Needs at OFC/NFOEC 2009, may have audio content from Mahna Mahna by The Muppets featuring Mahna Mahna & The Two Snowths that is owned or licensed by WMG.”

Avatar

The IP algorithm can also strike at the heart of cultural criticism. One recent example is a fan campaign calling for the recasting of the live action version of the animated series Avatar: the last airbender with Asian and other minority actors.

According to Glockgal:

All but one of the products on my racebending.com Zazzle store has been removed because “it contained content in violation of Viacom’s intellectual property rights”. This means not just images (all of which were drawn by me), but also WORDS.

Apparently a t-shirt saying ‘Aang can stay Asian and still save the world’ is a copyright violation

The Organization for Transformative Works blogged that the removed items included

“The Last Airbender: Putting the Cauc back in Asian” or “The Last Airbender: Brown/Asian/Colored Actors NEED NOT APPLY”. These design were entirely textual, and obviously political: Glockgal called her store Racebending.com and contextualized its products as a form of political activism: “Stop Hollywood White-Washing of the upcoming movie The Last Airbender!” … since when does [any company] own political speech about its products?

While this story has a successful end, why should preemptive removal be the way that corporate entities react? Because the law is written in a way that fair use is a postaction shield rather than as an anticipatory safeguard — even when the use is culturally significant.

Self-pwnage

But perhaps the best example of why the default should be changed to assumed fair use is self-pwnage — where a company can say “use away!” and “not OK” at the same time.

Recently, Fox had a YouTube user’s account suspended for participating

in a Burger King-sponsored mashup promotion on YouTube, where users were encouraged to use a web-based voiceover-creation tool to dub over videos from Seth MacFarlane’s Google-distributed Cavalcade of Cartoon Comedy series.

This isn’t new. Back in 2006, pre the word self -pwnage, though Cartoon Network’s New Media Department decided to place information on YouTube to help fans create their own commercials, the legal department sent out cease and desist letters. In an important moment of honesty, Molly Chase, Executive Producer of the New Media Department said, “Putting the content out there consciously is something we want to do, but we have to communicate that very well internally.” If corporations can’t even figure out what their position is on fan use, why should fans or the public be the ones that pay? Or to determine the outside limits of fair use?

Sunder says that

Culture is the sphere in which individuals create meaning, share ideas and enjoy life with others. Furthermore, culture plays an increasingly important role in promoting freedom in the social, political, and economic spheres of life. Cultural approaches to intellectual property law ought to recognize these interconnections.

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