Freedom of Expression®: Resistance and Repression in the Age of Intellectual Property
Drop that quotation/sample/collage, sir! An enlightening, amusing, and frightening look at how the growth of intellectual property law is making us all less free to say and think what we want.
In 1998 university professor and professional art prankster Kembrew McLeod trademarked the phrase “freedom of expression” as a joke, an amusing if dark way to comment on how intellectual property law is increasingly being used to fence off the culture and restrict the way we’re allowed to express ideas. But what’s happened in recent years to intellectual property law is no joke and has had repercussions on our culture and our everyday lives. The trend toward privatization of—melodies, genes, public space, the English language—means an inevitable clash of economic values against the value of free speech, creativity, and shared resources. Our irreplaceable cultural commons is being sectioned up and sold off to the highest bidders and the most aggressive litigators.
In Freedom of Expression®, Kembrew McLeod gathers topics as diverse as hip-hop music and digital sampling, the patenting of seeds and human genes, folk and blues music, visual collage art, electronic voting, the Internet and computer software. In doing so, he connects this rapidly accelerating push to pin down everything as a piece of private property to its effects on music, art and science. Written in a witty style that brings to mind media pranksters like Al Franken, Ken Kesey, and Abbie Hoffman, Freedom of Expression® uses intellectual property law as the focal point to show how economic concerns are seriously eroding creativity and free speech. It’s later than we know.
Freedom of Expression® comes with a free, exclusive downloadable version of “This Land Is Your Land,” by the Mekons’ Jon Langford (a vocal and an instrumental version of Woody Guthrie’s song). Click on the Jon Langford painting of Guthrie to download the tracks.
“We’re living in an age of intellectual-property rights run amok . . . asserts Kembrew McLeod in this smart, amusing examination of the increasingly grubby clash between private property and free speech.” —Mother Jones
“[McLeod’s] examination of intellectual property law is clear, concise, and funny.” —Wired Magazine
A Conversation With Jonathan Lethem About Creativity and Copyright
I have long been a fan of Jonathan Lethem — author of, among many other books, the bestsellers Motherless Brooklyn and The Fortress of Solitude. In the spring of 2006 our paths crossed for the first time at an academic conference. During the event, I nervously approached him to introduce myself and give him a copy of my book, Freedom of Expression®, which prompted Lethem to reach in his bag and pull out his own dog-eared copy. This was pretty much the last thing I was expecting from that interaction, given that I’m a relatively obscure scholar of intellectual property law.
It turned out that Lethem was reading about copyright, culture, and creativity in preparation for what became “The Ecstasy of Influence: A Plagiarism,” his well-received essay published byHarper’s in early 2007. In it, he used the words of other writers, including some of mine, without quotation marks to craft what he refers to as “a giant piece of appropriation art.”
A year after our first meeting, I sat down with him for a long and winding exchange about rock ‘n’ roll, Pop Art, Kathy Acker, comic books, painting, time travel, and fair use, to name a few of the seemingly disparate subjects we covered.
At the end of our talk, I had Lethem sign my copy of his new book, You Don’t Love Me Yet. Later, when I opened it, I was amused to read his inscription—which he borrowed from Abbie Hoffman—“For Kembrew, Steal This Book!”
It seemed appropriate, given the nature of our conversation.
ON THE ECSTASY OF INFLUENCE
What led you to write “The Ecstasy of Influence”?
Well, I can trace it very specifically, but it begins in the farthest reaches of my own interest in art and culture. To begin with, I’ve always liked and responded to collage art, and sampled music, and to openly brandished influences in art, generally. Quotations and appropriations have always resonated with me.
It began as a taste, as an appetite in cultural materials, not as a kind of political position in any sense. I grew up with a father as a painter and going to museums and galleries and looking at art a lot. I always responded to it. I sensed a recognition and enthusiasm the Pop artists had in their appropriations of comic books, or the Dadaists and their collages, and I always knew I wanted to make work that had this element or that reflected this tendency.
Back when I thought I was going to be a visual artist—and I did in fact make work that had collage elements and lots of quotation in it when I was a painter and a sculptor—I was always fascinated by music that was recognizably appropriated or transmuted from other music. I’ve always liked tracing the lineage of the bluesman into the rock and roll music that followed, understanding how Bob Dylan sourced these folk traditions.
Everything about that always struck me as lovely, and I never felt any resistance to believing that the art that I found most exciting and original was also frequently and plainly indebted, or sourced, in other art.
I took this for granted and was always disconcerted by the opposite reaction, by the tendency for people to want to denounce appropriation or borrowing—or to overstate the originality of something that they admired, or be disconcerted if you point out that, “Well, this quite lovely thing that you like, that song, or that painting, or that book—I can think of several precedents for it.” And people would become disappointed or confused.
And of course I feel both ways. I feel aware of the opposite tendency in me, but it is very weak and the other is very strong, and so I was always very curious about these questions.
I resented the idea that a word that had come to me in common usage, like Band-Aid®, was somehow private property. I never liked it, and when I began to write and would use certain words in lower case and my copy editors would try to capitalize I always fought them on it because it seemed unprincipled to me.
In other words, I was a “free culture” advocate waiting to happen because of a predisposition in me towards that kind of cultural activity.
ON COPYRIGHT AND ILLEGAL ART
What gave you the idea to do an appropriation-driven essay? Can you tell me about how you put it together? For instance, when I met you in 2006 you were in the middle of writing “Ecstasy of Influence.” You showed me a copy of my own book, Freedom of Expression®, that you’d been reading and there were all these Post-Its sticking out of the book’s pages. I’d imagine the same is true with all these other books you borrowed from.
Yeah, I had this whole pile of books that transformed in this effort into a pile of sources. I’m not sure exactly when I had the idea, I can’t recall, but of course now it seems so fundamental. It comes partly from the fact that I’m not ordinarily a very good or very comfortable thinker or writer in what you might call ideological or political language. I tend to think and write in metaphors and imagery. I make up characters and scenes and situations and notions and symbols.
And of course you—and Siva Vaidhyanathan and Lawrence Lessig—so knocked me out when I began to suddenly realize that there is this vein of very articulate, very persuasive advocacy that interests me. I would be hard pressed to do anything but just kind of a thin restatement of some of your basic premises. At the same time I felt there was sort of a place for another voice in this conversation.
One of the things that struck me, as much as I admired the work of the three of you, is that there is this whole other realm.
So there is this very strong public advocacy from you guys, and then there’s this other realm of provocation, you might say, from fringe culture, the kind of willfully illegal art that you see in the Illegal Art exhibition, or that Negativland propagates.
I was also conscious that there has been a lot of stuff, and I was very interested in it and liked it very much—often from the Web-based cultural creators who were not for the most part very well remunerated for their work. They didn’t have a large stake in the copyright system as such and they wanted to kind of throw a spanner in the works.
But what’s desperately absent is the ordinary working artist, mid-career, contemplating these things from within a more traditional art form and with a stake in copyright. Because the truth is that I make my living by licensing my copyrights, and there really is this total vacancy in the middle where the people whose stuff is being argued over have abdicated the conversation.
In their place, unfortunately I think, we have agents and guilds hammering away mostly on the side of corporate expansion of the domains of intellectual property and copyright—with no particular regard for either the fragile, elusive idea of a healthy public domain.
There’s no sensitivity to the fundamental ways in which individual artists are nourished by their participation in free cultural exchange. So there might be something very much at stake for even someone with the privileges that I enjoy, besides just how long I can cling to my copyright protections. But the authors’ guilds and the publishers’ associations and the agents’ associations don’t think along those lines, though it’s not their job to.
So I thought, “This is what I want to describe. I have no particular insight to offer Siva, or Kembrew, or Lessig, they know what’s wrong with the present situation.” But what I can do is talk as an artist in a way that might be persuasive and resonant with other artists and with people who read and appreciate our work.
I also wanted the essay to be something that would be undeniable; it would have the force of all of the arguments that I’ve absorbed and liked so much. So it became a very natural choice to say, “Let’s go ahead and make it a giant piece of appropriation art.”
I’m so rarely in the position to align myself with illegal artists. The funny thing about being a novelist—one reason I think very few novelists have tended to be active on this front—is that we can get away with so much. If I wanted to write a short story where I talked about a character that the reader would understand as Homer Simpson from The Simpsons, I could do it. No one would ever be able to stop me.
But if the equivalent piece of art was made by a painter—or let alone a digital sampling video artist or a musician who uses and captures the grain of Homer Simpson’s voice and puts it in a song—all of those people would be in trouble instantly. But I could bring the character to mind in my readers understanding without violating any law.
One of the fun things about reading your Harper’s essay, for me, was trying to guess when you were using my sentences and when you were using the words of others—like Lewis Hyde, Siva Vaidhyanathan, Lawrence Lessig, and others you appropriated—and when you were crafting your own sentences. It was like a game, trying to connect the dots in my head. That moment reminded me of the times when I’ve heard a sample of music from one song within another song, or when someone makes a pop culture reference in everyday conversation.
I’m really glad you drew attention to it because it was a very interesting piece to edit. The editors at Harper’s, with whom I’ve worked before—and Harper’s being a place where things are usually taken to a pretty high degree of editorial refinement—they would point out to me places where there was still a disjunction at some level.
Where I moved from, let’s say a sentence spoken by Harry S. Truman to my own writing, and they’d say, “This sounds a little weird, are you comfortable, you Jonathan Lethem with your reputation as a prose writer on the line, comfortable with not resolving this further?” And I thought, “Well, this is a mash-up, and one of the things that turns me on about mash-ups is the disjunctive quality.”
Or if you think of a collage, the places where the seam of torn paper is in evidence, and I thought, “This is okay. This is good. This is reproducing the means of its own expression.” It’s saying appropriated culture has an energy that comes from the surprise and awkwardness, the disconcerting quality that comes from seeing things moved in and out of other contexts, especially across years. When you think of the power of a Delta blues singer’s voice put into a piece of house music, techno beat, it’s partly that time travel is occurring.
One of the things that this essay did was, when I smashed Roland Barthes’s sentence up against Mark Twain’s sentence, there was—along with other things that were going on—there was time travel. That’s something that is a very remarkable experience for art to be able to provide.
So I didn’t want to smooth every rough edge down and turn every voice into a version of my own. I like that, as in a good piece of sampled music, there were moments when you were sure it was from one place, and other times you were really confused about where it was from.
ON ART AND APPROPRIATION
I was recently rereading Fortress of Solitude. As the novel progresses you write about soul and hip-hop as a kind of the soundtrack, as the narrative’s background noise. Growing up in New York in the 1970s and 1980s, do you see hip-hop as influencing your thinking about the appropriation practices you are now writing about?
Sure, I think that of course I was witness to a fundamental kind of appropriation art culture that was a nativist one. Hip-hop sampling and scratching—DJs mixing up records—didn’t come from any theory. It came from an intuition, a pleasure principle, and I was pretty responsive to that.
But I would also say that the generation of music fan I am, by the time I got to have a kind of rock and roll of my own, it is punk that claims itself as a kind of original, fresh turn in the history of rock-and-roll, though it’s also a reclaiming of certain kinds of 1950s energies. I think one of the first things I liked figuring out was that those same three chords that run through all the great trashy rock songs—the fact that all these great songs were kind of the same song—gave me a thrill.
I also grew up on other art forms that point in this direction in interesting, sometimes contradictory ways, like comic books. One of the whole things about loving Marvel Comics that’s quite confusing is that the writer or artist you always identify with on a given comic book gets taken off that comic book and someone else takes up the story.
So it’s this giant collective tapestry of different artists and writers and sometimes you feel with great distress, “Oh wait, how can someone other than Jim Starlin draw Warlock? That doesn’t make any sense.”
But other times you like Warlock so much that you go ahead and you shift to the next phase in his identity drawn and written by someone else, whoever it may be. “How can anyone but Jack Kirby draw the Fantastic Four?” Well, comic books school you in this kind of confusing maelstrom of different styles and expressions all applied to the same universe; it’s like this toppled together mosaic.
It also is this highly bastardized form where artists and writers, as it turned out, were often quite resentful and felt disenfranchised with their own creator’s rights in many ways. It raised those issues from another perspective. So many of the creators in that realm have had so little protection, they’ve had so little in the way of creator’s rights that they are kind of desperados on the other side of the fence. They really only recently gained any ability to copyright their own material at all.
Most of the great anti-corporate battles in that world have had to do with creators establishing themselves as having any rights to the material they made under work-for-hire contracts, and so for that reason they are pulling in the opposite direction. You can’t really blame them, and yet it’s quite strange because they work in this medium that has this fundamental collaborative quality.
Science fiction, which was a great appetite of mine in my teenage years, also had some of this quality. All the great American pulp science fiction writers were all writing in a kind of conversation with one-another. You couldn’t write an articulate, impressive science fiction story without having read all the other ones, because they were all upping the ante on each other all the time.
So again it had a kind of folk-mosaic quality to it, which maybe also points in this direction. It certainly is different from the image of the solitary, iconic, classic, absolute, unique authoritative creator that one associates with literature.
ON WRITING, MEMORY, AND PRIVATE PROPERTY
A few years ago I met a memoirist who ran into a copyright problem. In her book, which was published by a major trade press, she recounted a moment in her life that involved her husband who spontaneously sang a snatch of a pop song at an inappropriate moment—it was during a spiritual journey. Her book publisher told her that she had to get permission to quote the lyrics, despite the fact that it absolutely seems to be a fair use under the U.S. copyright law. However, she could not secure permission from the copyright holders, and so she basically had to alter that memory, or, rather, the expression of that memory. This raised the following question in my mind: “What happens when our memories contain private property, intellectual property?”
The particulars matter, even in very fictional contexts. When I wrote the chapter of Fortress of Solitude where my characters are beaten up to the tune of “Play That Funky Music White Boy,” I needed the particulars.
There was no change that could have been conveyed by any weird kind of paraphrase or disguise. I needed to name it, and one of the things artists do is quote from the world; they have to be able to name everything they see around them.
I didn’t clear any music for Fortress of Solitude, and I quote a lot of songs. But I can’t claim the courage all as my own, though it’s an issue that really matters to me. It happened with the encouragement of a very, very imaginative lawyer.
The lawyer felt that we had an advantage in that I don’t usually break them out of the text and set them separately. They tend to be quoted by characters in dialogue and mental monologue, and so they’re sort of stuck inside paragraphs. She thought, “This is good. This won’t draw so much attention.”
I felt it was an important act of principle, in a way, not to have a big list of clearances in the back of that book.
So this was of one of your first forays into…
That was a little foray. It was quietly done. I think it’s awfully good if writers will encourage their publishers to let them risk it and try it.
There’s almost no example more absurd than the incredible power the song publishing companies wield over book publishers, and how utterly intimidated publishers have become to dare to risk this. Because, what could be less rivalrous with a song than a book that mentions some lyrics? There’s no argument there.
So I’m not sure I want to be the one who is sued by ASCAP, but maybe I do want to be the one who is sued by ASCAP because I’d love to look someone in the eye and say, “Come on, do you really want to try to take some of my royalty money from this book because I quoted from the song that was in the air that day? I’m a working, living artist describing my life and the lives of my characters. Why, and how?”
I know there are some smaller presses that are willing sometimes to let an implicit fair use claim substitute for chasing down these permissions, and I think it’s great. I think major publishers should take that chance more often.
Actually, I think small publishers are just as intimidated. Some are, some aren’t. Even academic journals, of all things, tend to be very conservative.
Well that’s the thing. People shouldn’t be asked to risk their jobs or their company’s security on these principles, but on the other hand, someone’s got to stand up a little bit here and there.
I guess in the quietest way, I’ve been daring people to notice that I’ve stopped clearing lyrics.
ON LITERARY APPROPRIATION
Picking up on that, one of the things that I’ve never been able to answer myself, and I’ve spent years thinking about it, is the following question: “What is it that is different about the medium of writing when it comes to rights clearance?” I’m thinking about T. S. Eliot and his literary appropriations, or Kathy Acker. That is, when a novelist or a writer is appropriating from other writing, it doesn’t really seem to set off any red flags. However, if you to want to quote six lines of a song lyric, you’re moving from the medium of print to music, and that’s when the red flags fly.
Well it’s interesting. Every medium has its own extremely specific set of folkways and mores. Because, yeah, you’re right, with T. S. Eliot and Kathy Acker, or William Burroughs, the avant-garde license is very freely awarded in writing. “Oh, well, that gesture is understood. It’s not plagiarism, and it’s also not copyright infringement, or not in any way that anybody’s going to get excited about.”
The truth has mostly to do with the cash-on-the-barrelhead. The reason someone taking a little bit of another song has been turned into this great offense is because people feel that someone can make a lot of money from a song.
But when Kathy Acker grabs a piece of—well, usually she grabbed Melville or Dickens, first of all that stuff is in the public domain—but even if she borrowed a writer who was technically still copyrighted, there’s not a lot at stake financially. A publisher is not going to think, “We’re selling fewer of X because she borrowed Y for her odd little avant-garde novel.”
She’s not making a lot of money. Probably the person she was borrowing from isn’t John Grisham, and it just sort of flies under that business radar. It’s seen as an avant-garde gesture that a few people get to do, and then we all go, “Ho ho ho, that was a very interesting avant-garde gesture, but real writers are always totally original.”
I think, in another sense, writing is very reactionary and very conservative. The great preponderance of writers are understood to be necessarily originating every word that they put on the page, and if they dare to violate it we’re actually very quick to call them plagiarists, whereas a comparable amount of normal quotation or borrowing in painting is seen as very, very typical.
In writing it’s only a very small handful of avant-gardists working in a very self-conscious posture who have been congratulated for it. Everyone else is a plagiarist if they are revealed to have done something like that. But in painting, if you think about it, almost every art movement—with the sole exception of the pure abstract painters—they quote imagery, quote other paintings, quote the history of art, and rework it constantly everywhere. It’s very typical. It’s central to painting.
I don’t think the same gesture is seen as central to writing. It’s seen as marginal. It’s a special case. And I also think that writing has this very confusing overlap, because it exists in the same medium as journalism and the papers that students write.
So here are these areas where—for local reasons, and I don’t mean that in a dismissive way—it’s quite important that teachers get their students to try to write original essays and not just print out stuff they find on Wikipedia or whatever. That’s important for teaching because it’s an important way for people to study and learn. It’s maybe less urgent that journalists not cut and paste their pieces, and it maybe seems a little hysterical to me the way journalists are constantly tearing each other down for this practice.
Anyway, because the neighboring realms of academic and journalistic writing are viewed in that context—rather than in a pure, let’s say “arts” context—you get very, very ridiculous accusations of plagiarism in the literary realm. Like the one that recently flew out against Ian McEwan. It’s just a laughably pointless accusation, but it’s one that I suppose would have excited someone in academia or journalism.
I mean, if that’s plagiarism then we’re all in a great load of trouble because novelists build their words out of pieces of everything, of things they observe, things they overhear, things they read. This is how it’s done. The work doesn’t just arise out of some great void.
So, yeah, I think it’s very interesting. You could make a similar analysis regarding the strange paradoxes of how plagiarism and borrowing are regarded in each and every different artistic realm. It’s quite striking.
ON THE PUBLIC DOMAIN
As a rights holder, you obviously have an interest in continuing to make money off your work, but you proposed something interesting with your newest novel, You Don’t Love Me Yet, with regard to the film rights. Could you briefly explain what you did, and why?
Well, it’s a little tricky to describe in that it has two features. The first feature is the one that has been getting all the attention, understandably, but it’s the less interesting part.
I’m giving the option on the book away for free, and of course any time that you use the word “free” and talk about a book being turned into a film, people get really excited. Now I’m not actually even proposing to give away the whole rights. I do want to get paid eventually—something, at some point down the line.
The film option, which is ordinarily a big up-front payment that a filmmaker has to make just for the privilege of attempting to make a film, often totally prohibits smaller filmmakers or independent filmmakers from optioning books by major writers, because a price is usually set, a threshold is usually set. It’s quite high and it’s that payment that would come out of a filmmaker’s own pocket.
So in this case I just decided I would take money out of this equation. The initial option will be free, the payment will come to me some later date in some large or small size, depending on what kind of budget they propose for their film and what kind of financing they get.
Now, this isn’t that special. A lot of authors, at one point or another, have given either a free or a very inexpensive option on one of their books or especially on some of their short stories. Not out of some altruistic concept, but because you’re interested in the possibility of the project, you like the filmmaker, you think they might do something interesting, they’re impoverished, they don’t have any dough, and you think this is worth doing.
So it’s not that original. What is unusual is that I’m doing it proactively. I’m deciding that that’s the way I want to do it. I’m announcing that and boasting about it, but even so, it’s a relatively ordinary transaction.
The wrinkle, and the place where I’m really being provocative and doing something really strange—certainly for the likes of film studios and agents and so on—is I’m asking that this filmmaker and I will take a kind of lover’s leap into the public domain five years after the film is finished and they’ve had a little time to be the exclusive benefactors of its existence.
Anyone, after this little period has passed, can make a sequel to the film, or could make a television series out of the book, or the film, or the characters. Anyone could make a stage play or a musical, or a comic book, or a theme park, or action figures. Anyone, if they felt like it, could write a sequel novel using my characters.
The only thing that will still be held on to is the actual artifact—my freedom to be the sole proprietor of the text I wrote, the book itself—and the filmmaker would be the sole proprietor of the DVD of their own film. But the story, the ideas and images, and concepts are just going to be up for grabs as if they were written 200 years ago by someone whose rights have totally lapsed.
Of course it’s very presuming in a way because, who knows whether anyone cares? This is a novel that I’m very proud of and I like it a lot and I think the characters are fun, but it has no established value. It’s not Gone With The Wind, and it’s not Harry Potter. It’s not a given that anyone will ever want to make even a film, let alone all these other secondary or tertiary adaptations of these characters and this story.
I don’t want to seem to think that it’s necessarily going to turn into all this other stuff, it’s just a thought experiment taking place in real time. I like the idea that it could happen, so that if anyone is turned on by this material it will have this unusual accessibility. It will just be theirs to fool around with if they want to.