Our MIT6 Conference Presentation: The Intellectual Property of Remix Culture

After a truly great time presenting about fan culture two years ago at MIT5: Creativity, Ownership, and Collaboration in the Digital Age, we presented at the Massachusetts Institute of Technology’s Media in Transition Conference — this year entitled MIT6: Stone and papyrus, storage and transition (MiT 6). While our conference summary is forthcoming, here is our presentation (originally entitled: The Intellectual Property of User-generated Content), though the full paper will be on the conference website:

Generators of remix culture create communities and content, making the intellectual property of others more valuable, but receive no compensation for their work that increases the value of another’s property, and receive little to no rights in what they have created or added. Our presentation focuses on a particular sub-set of user-generated content: derivative/ transformative works of creativity – such as music videos (or vidding), fan-fiction, fan-zines and websites – though it could be applied to any situation where there is tension between a corporate content owner and its audience about ownership of the “brand” usually due to concerns of degrading market value or anti-piracy.

Pwnage

So what do we mean when we talk about intellectual property? To greatly simplify, we are focusing on copyright and trademark. In the U.S, copyright attaches to works immediately, once a creative, intellectual, scientific, or artistic works is fixed in a tangible form — and exists for life of the creator plus 70 years. The right to create derivative works is given to the creators — but there is fair use that allows others to use copyrighted works. Trademarks are the “branding” imagery plus auxiliary content (Apple brand computers, Apple brand music providing network (iTunes), Apple brand symbol, etc.) — and require registration, can be kept forever, yet need to be protected to be kept. An additional complicating factor are licenses — either for use of specific intellectual property or for use of a platform, such as YouTube.

Henry Jenkins writes in Convergence Culture that

“American intellectual property law has been rewritten to reflect the demands of mass media producers–away from providing economic incentives for individual artists and toward protecting the enormous economic investments made in branded entertainment”

MONEY! MONEY!

Those who are part of participatory culture are often not seeking compensation in traditional ways, yet are not just doing it for the LOLs. Viviana Zelizer discusses the social meaning of money in her same titled book:

“Money [according to some theorists] destroys, necessarily replacing personal bonds with calculative instrumental ties, corrupting cultural meanings with materialistic concerns…. Observers of commercialization in Western countries have thought they saw devastating consequences of money’s irresistible spread: the inexorable homogenation and flattening of social ties.

Money may not be what fans are seeking — instead recognition, credit, etc — but what are likely at the bare minimum to be seeking the ability to continue to participate. And continue to strengthening social ties in multiple ways — to each other, to the work, and to creators/owners.

LESSIG! (done in Khan style)

Laurence Lessig’s recent book, Remix: Making Art and Commerce Thrive in the Hybrid Economy discusses our present situation, includes a lengthy discussion of the economics of two types of culture — commercial and sharing.

A commercial economy [is centered on] money or “price” [as] a central term of the ordinary, or normal exchange.

Of all the possible terms for exchange within a sharing economy, the single term that isn’t appropriate is money.

But Lessig discusses a combination between the commercial economy and the sharing economy — the hybrid economy:

The hybrid is either a commercial entity that aims to leverage value from a sharing economy, or it is a sharing economy that builds a commercial entity to better support its sharing aims.

If those within the sharing economy begin to think of themselves as tools of a commercial economy, they will be less willing to play. If those within a commercial economy begin to think of it as a sharing economy, that may reduce their focus on economic reward.

Much of Lessig’s discussion about hybrid economies is applicable to fan culture and other examples of participatory culture and user-generated content. Therefore, our presentation is about both the successes and failures of hybrid economies and about how in order to get something of value, some measure of control over property needs to be loosened. Commodifying the value added by user-generated content varies greatly depending on who or what is determining the value. culture.

Tiziana Terranova also discusses the role of moral economy that discusses “free labor” found in fan participation:

“Free labor is the moment where this knowledgeable consumption of culture is translated into productive activities that are pleasurably embraced and at the same time often shamelessly exploited….The fruit of collective cultural labor has been not simply appropriated, but voluntarily channeled and controversially structured within capitalist business practices.

Firefly/Serenity (we have this section blogged here)

Harry Potter (we have a longer version of this section here)

Recently, J.K. Rowling won a case preventing the print publication of the Lexicon, a non-licensed encyclopedia of the Harry Potter universe. While barely mentioned during the trial, this case is not just about one book, but concerns the entire Harry Potter fan community.

The Lexicon was created as a online encyclopedia with a large number of fans helping to make the entries accurate. When Vander Ark signed his book deal, completely ignored were the countless fans that contributed and made the website a success. So the lawsuit was fight between the author and the compiler/host of a fan-created work. Yet the fans who have contributed to the Lexicon get neither money nor recognition of their contribution.

The longest mention of fans during the trial was by the publisher:

Q… if you win this case, out of the money that you receive, you don’t plan to give any of it to fans who submitted their work, their time, to submitting information from Ms. Rowling’s book to Mr. Vander Ark’s website, is that right?
…
Q. You’re going to give back money to the fans, is that what you’re saying?
A. If the book is successful, there’s a lot of possibilities.

Later, the judge said that the issue of fan payment/contribution was irrelevant:

Whether or not the fans contributed … is a side issue.

J.K. Rowling has always been supportive of the fan community surrounding her works, interceding on behalf of fanworks (she is however against fanworks that use underage characters in illegal physical situations). This case has led to a rift in the Harry Potter fan community, with the Leaky Cauldron (the most popular Harry Potter news-site/message-board) cutting all ties to the Lexicon.

A recent New York Times article, Public Provides Giggles; Bloggers Get the Book Deal, discusses how user input to websites, such as I Can Has Cheezburger? (book sold over 100,000 copies), has led to website owners receiving compensation while those that created value receive nothing:

the latest frenzy is over books that take the lazy, Tom Sawyer approach to authorship. The creators come up with a goofy or witty idea, put it up on a simple platform like Twitter and Tumblr, and wait for contributors to provide all of the content. The authors put their energy into publicizing the sites and compiling the best material.

Nowhere mentioned in the article is whether contributors receive recognition or compensation.

Star Wars

Star Wars is often talked about as a positive example — after all, there is a highly active fan community and a fanfilm contest. However, at present, Lucasfilm only allows for and takes control over certain types of fanworks — and zealously goes after those that do not fit their standards, even if those works arguably could be considered to be fair use.

Both Henry Jenkins in Convergence Culture (2006) and Anne Elizabeth Moore in Unmarketable: Brandalism, Copyfighting, Mocketing, and the Erosion of Integrity (2007) quote the same Lucasfilm exec, who said in the New York Times in 2002:

“We’ve been very clear all along where we draw the line. We love our fans. We want them to have fun. But if in fact somebody is using our characters to create a story unto itself, that’s not in the spirit of what we think fandom is about. Fandom is about celebrating the story the way it is.”

Moore describes the control Lucasfilm expects over the fandom as

It is an idealized brand environment that prohibits any potential negative, critical, or neutral comment.
…The Lucasfilm IP strategy, therefore, might read something like this: imitation is the sincerest, and only allowable, form of flatterry. Yet in practice, this narrow definition of fandom, while encouraging freedoms of certain speech, actively discourages others …[and] even punishes them. The strategy begins to look like a legally enforced suspension of critical engagement.”

Lessig says

A careful reading of Lucasfilm’s terms of use show that in exchange for the right to remix Lucasfilm’s creativity, the remixer has to give up all rights to what he produces. In particular, the remixer grants to Lucasfilm the “exclusive right” to the remix — including any commercial rights — for free. To any content the remixer uploads to the site, he grants to Lucasfilm a perpetual non-exclusive right, again including commercial rights and again for free.

The remixer is allowed to work, but the product of his work is not his. Put in terms appropriately (for Hollywood) over the top: The remixer becomes the sharecropper of the digital age.

Lucas is of course free, subject to “fair use,” to do whatever he wants with his creative work. The law of copyright grants him an exclusive right to “derivatives”; a remix is plainly a derivative. And it’s true that no one is forcing anyone to make a remix for free.

Nine Inch Nails (we have a shorter version of this section here)

Conversely, the band Nine Inch Nails and the musician behind it, Trent Reznor, has in recent years spearheaded novel approaches to user generated content that allows a symbiotic/collaborative relationship with fans and their work. It closely represents both the fundamental mindset of Open Source developer communities (distributed ownership) as well as adopting a model very similar to to the curious copyright culture in Japan, anmoku no ryokai, that allows derivative manga to be sold alongside their corporate-owned source. This approach won’t work for every corporate owner/creator, and it’s certainly not the only one, but it’s at least one current example of a hybrid.

NIN’s fanbase have had a traditional unusually interactive relationship with each other and with the band, serving as self-selected ambassadors and archivists for both official releases of the band and NIN fanworks:

NIN Historian: started in 2002, a fan run website that has documented memorabilia from live NIN shows from the bands inception.

NIN Remixes.com: an archive of fan-created remixes of Nine Inch Nails songs, which allows indivuals to upload their own work, and existed before Trent Reznor allowed his post – Interscope work to be distributed under a Creative Commons license. Remix.nin.com , started two years ago and exists alongside ninremixes.com, the fan run site that has existed for over 5 years. Universal Music group halted the launch of the “official” site

Year Zero ARG: As part of the Alternate Reality Game that accompanied YZ, three of the tracks were made available on flash drives ata couple of NIN shows. When the tracks were leaked on the internet, RIAA cracked down on the fans leaked tracks and remixes, even though the ARG campaign was officially condoned by Universal Music Group.

From Billboard:

“An RIAA representative confirms this, a move that boggles the minds of many. “These f*cking idiots are going after a campaign that the label signed off on,” the source says.”

Since the Creative Commons blog has already put together links:

First, there’s the critical acclaim and two Grammy nominations, which testify to the work’s strength as a musical piece. But what has got us really excited is how well the album has done with music fans. Aside from generating over $1.6 million in revenue for NIN in its first week and hitting #1 on Billboard’s Electronic charts, Last.fm has the album ranked as the 4th-most-listened to album of the year, with over 5,222,525 scrobbles.

Even more exciting, however, is that Ghosts I-IV is ranked the best selling MP3 album of 2008 on Amazon’s MP3 store.

The post (mirrored on Laurence Lessig) has an explanation for this:

So why would fans bother buying files that were identical to the ones on the file sharing networks? One explanation is the convenience and ease of use of NIN and Amazon’s MP3 stores. But another is that fans understood that purchasing MP3s would directly support the music and career of a musician they liked. The next time someone tries to convince you that releasing music under CC will cannibalize digital sales, remember that Ghosts I-IV broke that rule…

In The Economic Structure of Intellectual Property Law Posner and Landes state that

“When several artists contribute to creating an integrated expressive work, it is efficient to vest copyright in one person [or company] and who better than the initiator and coordinator of the project?”

Posner and Landes continue

… [I]f a work is offered as a substitute for another work, then it takes away sales from the copied work. If the work is offered as criticism, it may take away sales too, but not by virtue of the copying– by virtue of the criticism, which should be permitted.”

The Ghosts example is certainly an argument against that statement. Recently, NIN went a step further in extending creative control to fans by “discovering” 400GB of high definition concert video footage online and inviting fans to create their own video projects.

There’s a bit of history behind this: after learning that a home video release of the most recent tour NIN was not in the cards (long story behind that, but at least according to Reznor, it was due in part to his former record label roadblocking him), some disappointed fans took it upon themselves to organize an online community to create a fan-produced video of the last show of the tour. From fan website http://thisoneisonus.org:

On 5th May, 2008, Nine Inch Nails released their latest album, The Slip, free online, as a gift to their fans. Or as Trent put it: “This one’s on me”.

On December 13th, 2008, dozens of Nine Inch Nails fans recorded the last show in the Lights In The Sky tour at Planet Hollywood, Las Vegas:

By working together, we aim to create a DVD to document this show that will be released free online, and possibly as a not-for-profit physical release. This one, is on us. Our time. Our effort. Our present to all NIN fans.

This was all with the indirect “blessing” of Reznor, who even before the video leak, loosened up the video security at the the show, allowing fans to record their own footage. Now to be sure, artists condoning and supporting fan video isn’t entirely a new concept either: back in ‘04, the Beastie Boys gave video cameras to fans and released an entire feature concert film of fan-shot video. And long before they became Public Enemy number 1 to grassroots fan activity, Metallica released a video, Cliff ‘em All, that featured some fan-made video record during their early years. But providing what is essentially a DVD’s worth of video footage for fans to play with is notable: it’s a gesture that embraces the open source/Creative Commons approach to fan-works and fair use that presumes a kind of perceived collective ownership of property. (A court would argue whether the derivative works of remixes and fan videos belong to Reznor or the fans, but there’s cultural perception within that particular community that the footage is owned collectively the fan community at large.)

Each party receives compensation from this sharing economy: NIN gets to leverage the enthusiasm of fans, who are willing to invest time and money to serve as free marketing ambassadors for the band, while fans recieve a product to consume free-of-charge.

Conclusion

We’re at a point now where more content/owners creators depending on social media/viral and word of mouth marketing to extend their reach and fans using technology and media tools to create increasingly sophisticated derivative works that conflate the role of media producer/consumer/owner/ambassador. Now, we’re seeing those worlds bump into each other. Current copyright law and culture hasn’t yet caught up to these advances in technology and culture. Pat Aufderheide mentioned at her presentation at MIT6 about a 20th century mindset to fair use being carried over into 21st century practice, and I think that’s what we are seeing here.There’s room here for scholars and practitioners to identify these “best (and worst) practices” of this hybrid economy model to replicate and to guide policy decisions, with more companies at least exploring the possibilities of adopting an approach that allows for a safe haven for fans/brand supporters/etc. to create content that would benefits all parties, and also allow users to edcate themselves on their own rights and responsibilities as media producers in this public sphere.

Laurence Lessig says that:

“there is a deep divide between those who believe that obsessive control is the hybrid’s path to profit … It is for the privilege of getting to remix … that these new creators are told they must waive any rights of their own. They should be happy with whatever they get (especially as most of them are probably “pirates” anyway).

A decade from now, [a controlling] Vaderesque [approach to remix culture] will look as silly as the advice lawyers gave the recording industry a decade ago. New entrants, not as obsessed with total control, will generate radically more successful remix markets. The people who spend hundreds of hours creating this new work will flock to places and companies where their integrity as creators is respected. As every revolution in democratizing technologies since the beginning of time has demonstrated, victory goes to those who embrace with respect the new creators….Businesses will have to think carefully about which terms will excite the masses to work for them for free. Competition will help define these terms. But if one more lawyer protected from the market may be permitted a prediction, I suggest sharecropping will not survive long as a successful strategy for the remixer.