December 20, 2002
Don't Waste Culture. Recycle!
A Brief Primer on Art and Copyright

Artist Dave Muller mixes Peanuts cartoons with art gallery advertisements to create commentaries on the art world. DJ Spooky recently mixed hip hop and electronic music to DW Griffith's silent film "Birth of a Nation" to create "Rebirth of a Nation." The website,, sells CDs of found and sampled sound, including entire albums made of Beck samples. There is even an exhibition of Illegal Art showcasing appropriation art, video and music that have met with legal challenges.

This type of expression based on unexpected juxtapositions, irony and social commentary has been around since the early 1900s. Marcel Duchamp introduced the concept of the "readymade" to the art world in 1914. He took a urinal, flipped it upside-down, put his name on it and changed it into an art object. He didn't create a sculpture from scratch but transformed an everyday object into an artwork by changing its context. Picasso and Warhol have sampled, appropriated and borrowed to create their own works. Picasso included newspaper clippings in his paintings. Warhol relied on the imagery of Hollywood and consumer culture for most of his art. Even Shakespeare was a prolific borrower of historical texts to tell his tales. These artists are not mere plagiarists; they create new meaning by placing old products in new contexts. DJs, artists and filmmakers continue this tradition - reinventing culture by recycling it, criticizing or paying tribute to mass media by appropriating it.

But in order to appropriate, one has to first acquire raw materials. The materials in this case are not paint or wood or musical notes but ready-made cultural artifacts such as photographs, films, or songs. However, copyright and trademark owners don't see themselves as lending libraries for the appropriation artists set. Copyright owners - record labels, movie studios and publishers - make lots money by selling permissions (licenses) for others to use their work. And trademark owners fear their trademark will lose value if others use it. If someone uses another's material without permission, they often get a cease and desist letter asking them to stop or be prosecuted. Lawyers will write such letters even though the use may be legal. (Copying excerpts is legal for certain "fair use" purposes such as teaching, research and criticism.) But intellectual property lawyers know that most people can't afford the cost of a lawsuit and are likely to stop what they're doing if they get a cease-and-desist letter.

Mass media and consumer culture are such an integral part of our lives that artistic expression and social commentary often rely on referencing popular icons, characters and products. But copyright and trademark owners, in their efforts to protect their "property", often end up controlling the public's ability to speak. For example, Noel Tolentino used Binky, a character from Matt Groening's Life in Hell comic, on the cover of his zine Bunnyhop. When he sent a copy to Groening, he received a cease-and-desist letter from a lawyer in reply. The Bunnyhop publishers were forced to destroyed the rest of the covers because they did not have the resources to mount a legal challenge. Other times, artists censor themselves to avoid legal disputes. Diana Thorneycroft makes drawings of well-known characters like Mickey Mouse and Barney in violent situations to depict violence in children's entertainment. However, when she got a gallery to exhibit her work, she removed the drawings of the most well-known characters to avoid liability.

Intellectual Property Regime Change?

So far, artists have been protected from government censorship by the First Amendment. Now, restrictions on speech don't come just from the state but from private industry - movie studios, record labels, publishing houses, etc. Although these corporations are "only protecting their intellectual property" when they send cease and desist letters, they are efffectively restricting a huge portion of artistic, social and political speech. In addition, because the boundaries of "fair use" are murky, many artists will simply self-censor rather than risk a legal dispute.

Solutions exist both inside and outside the current legal system. Some artists simply disregard the law and replace formal channels of production and distribution with grassroots methods. Many of them are obscure enough (and poor enough) to be overlooked by lawyers scouring for infringement. Some may be strategically trying to get into trouble so their case can set a new legal precedent and perhaps expand the boundaries of fair use to cover sampling. The band Negativland was sued for doing a parody of a U2 song. They are now strong advocates for fair use. Detritus provides resources to revitalize culture by recycling art and music. Droplift is a creative way of distribution where homemade CDs are distributed by being dropped off at record stores without the owners' knowledge. This way, musicians can bypass traditional channels of distribution (through a record label) and still reach an audience.

Others are working within the current legal system to preserve and expand the public domain. This includes fighting to keep copyright terms reasonable and also creating alternative copyright licenses to promote a culture of sharing. Right now, the owner of a copyright automatically has control over how their work can be legally copied or used. But what if someone if willing to share work for free (or at least for an acknowledgement)? They can inform others that their work is part of the public domain by tagging it with a free art license from Copyleft. Creative Commons is another organization creating alternative licenses. These licenses allow artists to identify their work as "shareable" within specified limits. This way, others can use their work without worrying about being sued. This philosophy of "open culture" comes in part from the Free Software movement.

Finally, technologists are creating tools that facilitate sampling. New software, including Final Scratch, allow DJs to spin MP3 files, instead of only vinyl, on a turntable. There are also lots of free tools for making digital art and music on the Linux platform. And soon, we may even have technology that allows us to easily catalog, access and sample video clips. Marc Davis, a professor at U.C. Berkeley, hopes his project, Garage Cinema Research, will empower the media-consuming public to become media creators. Technologies that facilitate sampling have the power to create new business models that allow sampling to be both profitable for the copyright holder through widespread licensing and affordable and legal for the user.

This work in art, law and technology is critical to preserving a creative culture and democratic dialogue. In a New York Times article, Andras Szanto of Columbia University said, "These days, many artists are more afraid of getting a cease-and-desist letter than of outright censorship." However, these cease-and-desist letters are a kind of censorship - corporate censorship borne of the current intellectual property system. If the current system is not challenged, free expression will soon be a privilege, not a right, available only to an elite who can hoard expression and silence those who dare to speak.

[Resources: California Lawyers for the Arts, Volunteer Lawyers for the Arts and Lawyers for the Creative Arts provide information and referrals to low cost or free legal services. Chilling Effects, keeps an archive of cease and desist letters to document restrictions to free expression. Raw materials for sampling can be found through, the Prelinger Archives, and Open Content. The Free Expression Project recently published a policy report on how copyright threatens intellectual freedom. ]

Posted by Lisa Wang at December 20, 2002 12:31 PM

Great article. Many great accurate points. Thanks

Posted by: Chris Allison on March 10, 2003 02:56 PM

I ditto that: great article. I've always thought of myself as a big free speech, anti-censorship sorta person (Though I suppose most people think of themselves that way..) but I still just blithely assumed cease-and-desist letters were a perfectly legitimate, reasonable means for artists to protect their intellectual property. Never considered the chilling effects they have on "sampling" as an art form. Excellent work! And the info about copyleft and alternative licenses was news to me!

Posted by: Mike Rosen-Molina on March 24, 2003 09:08 PM
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