Dmitri Siegel | Essays

It Takes a Nation of Lawyers to Hold Us Back

It Takes A Nation of Millions to Hold Us Back. Photography and design by Glen E. Friedman, Public Enemy logo by Chuck D, 1988.

When the Smithsonian Institution recently announced a deal with Showtime to create a joint venture called Smithsonian Networks, documentary filmmakers and free-speech advocates were outraged by the prospect of a single corporation having exclusive rights to a public trust (the Smithsonian is funded by 75% public money). But this is only the most recent development in the gradual erosion of fair use and the public domain in America. In the 1980s and early 90s sampling was a vibrant creative strategy for designers, musicians, and filmmakers. Public Enemy (led by Chuck D, who received his degree in graphic design from Adelphi University in 1985) released their masterpiece It Takes a Nation of Millions to Hold Us Back, Paula Scher appropriated Herbert Matter's work for Swatch, and Jeff Koons was putting Nike ads in the Museum of Modern Art unaltered. It seemed as though digital technology and the universal access to information promised by the internet were poised to make sampling a permanent part of creative practice. But the explosion of sample-based work has receded dramatically in the last ten years. Is this a result of changing tastes? Did audiences and artists tire of work that critics called facile, fragmented and even ugly? Or did the legal hurdles thrown up in distributing such work make the tactics less viable? In short, did sampling jump the shark, or was it pushed?

The Smithsonian/Showtime arrangement demonstrates how thorny intellectual property and copyright law have become. The deal, which officials at the Smithsonian have characterized as both "secret" and "deliberately vague," gives Showtime preferred access to the Smithsonian's archives and staff. Showtime will also have the right of first refusal over work by designers, filmmakers and artists who want to use these Smithsonian's resources in any way not deemed (and here comes the intentionally vague part) "incidental." Ken Burns, who pioneered use of the Smithsonian archives in his Civil War series for PBS said of the agreement, "I find this deal terrifying...it feels like the Smithsonian has essentially optioned America's attic to one company, and to have access to that attic, we would have to be signed-off with, and perhaps co-opted by, that entity." He went on to say that he would not have been able to make Jazz and Baseball under this new regime. In an interview with The New York Times, Jeanny Kim, a vice president for media services for Smithsonian Business Ventures disagreed with Burns' assessment saying, she thought those films made only incidental use of Smithsonian collections. Unfortunately it won't really be up to the Smithsonian — who might be more disposed to err on the side of the public good — to make such distinctions. It will be up to Showtime and their army of intellectual property lawyers. Anyone who has worked for a content provider like Showtime is familiar with the phrase, "in perpetuity throughout the universe." This is the copyright that Showtime claims in every work-for-hire agreement and it embodies the kind of blanket legal coverage that one has to assume is at the core of the (still secret) Smithsonian/Showtime contract.

Poster for Swatch Watch USA, Paula Scher, 1984.

But there are even more troubling options opened by this agreement. In his book Copyrights and Copywrongs: The Rise of Intellectual Property and How it Threatens Creativity, Siva Vaidhyanathan outlines the hidden part of the copyright law iceberg. For example, under the Digital Millenium Copyright Act (DMCA) passed in 1998, it is entirely legal to copyright a copy of a work that is within the public domain. So, if Showtime chose to digitize footage in the Smithsonian archives, they would retain exclusive intellectual property rights over the digital copies and would only have to restrict access to the original film stock to exercise complete ownership over the footage. This may sound outlandish but Vaidahyanathan details numerous cases just like this. For example, the film Birth of a Nation has been in the public domain since the 1930s but the DVD reproduction is protected. As the celluloid negative decays in a storage facility somewhere, control of the digital reproduction becomes a de facto copyright. Companies were exploring this kind of strategy even before the DMCA was passed. In the 1980s, the dubious process of "colorizing" allowed Ted Turner and others to extend their copyrights on films from the golden age of Hollywood that were about to enter the public domain. Showtime will have it even easier if the United States adopts the World Intellectual Property Organization's Treaty on the Protection of Broadcasting Organizations. This law would give them an automatic 50-year copyright over the content of their broadcasts, even when they have no copyright on the source material. So simply by broadcasting a Smithsonian-based documentary, Showtime would gain a level of copyright control over the assets included in the project.

Moses, Jeff Koons, 1985.

The prospect of these restrictions is particularly disconcerting because of the explosion in documentary film production in recent years. Access to archival footage and inexpensive editing tools have fueled a renaissance in a medium that only a decade ago was thought to be stuffy and academic. Showtime obviously sees the potential profitability of this burgeoning medium — even as their efforts to control source material may have adverse consequences on the genre.

An example of how this pattern of creative outburst, followed by rapid litigation, impacts an emerging medium can be found in the history of hip-hop. When hip-hop first emerged there were few laws regulating the use of samples, and artists like De La Soul, Public Enemy, and the Beastie Boys made free use of the collective musical memory in their work. But as the genre became more profitable, record companies started asserting more control over their back catalogs. In the magazine Stay Free (Issue 20), Hank Shocklee, who produced It Takes a Nation of Millions... described why it would be impossible to produce such an album today: "By the late 1980s...you could have a buyout — meaning you could purchase the rights to sample a sound — for around $1500. Then it started creeping up to $3000, $3,500, $5,000, $7,500. Then they threw in this thing called rollover rates. If your rollover rate is every 100,000 units, then for every 100,000 units you sell, you pay an additional $7500. A record that sells two million copies would kick that cost up twenty times. Now you're looking at one song costing you more than half of what you would make on your album." These financial and legal hurdles altered the creative process behind hip-hop.

In order to use a sample today, an artist has to be sure that it will pay for itself. Collaging multiple sounds has become prohibitively expensive. In order to avoid paying for a master recording copyright (a fee that goes exclusively to the record company) in addition to a publishing copyright (part of which goes to the song-writer, at least in theory), hip-hop producers started hiring musicians to replay well-known songs instead of sampling the original recording. For example, Puff Daddy paid a great deal of money to use the Police song "Every Breath You Take" for his Biggie tribute "I'll Be Missing You." Given the equations described by Shocklee, it is not surprising that he hired a band to play the song's hook note-for-note instead of looping the original recording. The effect of recombining specific recordings with unique sonic and aural qualities — the effect that originally defined the hip-hop sound — has largely disappeared. What was once a creative free-for-all has devolved into cost/benefit analysis.

The last decade of litigation has brought similar and chilling trends in a every media. It is disconcerting to realize that creative pursuits like music, filmmaking and graphic design are shaped to some degree by unromantic things like copyright law. But if we scan down the history of collage and appropriation we can see the constant influence of political and socio-economic context: Sergey Eisenstein connected his idea of intellectual montage directly to the Bolshevik Revolution, Dada artists like Hannah Höch harnessed the brut power of collage in reaction to war and fascism, and in the late-sixties Guy Debord formulated detournement — a form of transgressive appropriation — as part of a widespread social movement. This history casts a revealing light on the Smithsonian/Showtime deal, and the diminution of sampling in general. It may be gratifying to imagine that our field is animated by an evolving aesthetic consensus, but the fact is that larger social and economic forces exert an immense and often invisible influence over creative practice.

Comments [29]

What a rich field of inquiry. Thanks for this excellent article and links.

Thank you so much for this article. Sampling is a significant--and often essential--creative and conceptual tool for artists, musicians, and designers alike. It is extremely upsetting to see laws that were meant to protect our work turned against us for corporate profit. In your research did you find any evidence or tenable support of a resistance to this trend?
Ansel Olson

Great question Ansel. One person who is providing a model for how to deal in archival footage without generating more restrictive copyrights is Rick Prelinger. The Prelinger Archive offers thousands of clips for free download and has demonstrated that this drives business to the clips he sells through Getty Images. Another organization working to create an alternative copyright reality is Creative Commons which offers a range of voluntary "some rights reserved" licenses. A great general resource on this topic is Stay Free magazine which I relied on heavily while researching this article.
dmitri siegel

Another great resource about the history, evolution, and problems with current copyright law and how it pertains to creativity is Lawrence Lessig's book Free Culture

Sampling, in its infancy, was a means by which new, exciting art and music was created. In most cases the source material was either manipulated to give it a new voice or in celebration of the original. The common thread was the reinterpretation and re-presentation of the work. This no longer seems to be the case as I tend to hear the hook, but not the content.

This seems to relate to design and art as well. Personally, I'm a fan of Paula Scher's work for Swatch as it was a homage, not a rip-off, to Herbert Matter. Much like early hip-hop, she introduced a generation to an artist who they may never know otherwise. Such work induces one to research the source.

As for the Showtime deal, we can be concerned, annoyed, even angry that another open source has been locked down. However, we shouldn't be surprised. Corporate greed has never left room for creativity or the public good.

So, while we scream to the heavens about the injustice of it all, we should take heart. The arts, the community, the collective "we" will find a way to circumvent, obfuscate, and boldy defy the powers that be. Although it may be from the cardboard boxes we're forced to live in after all of our worldy posessions have been taken from us from those intellectual property lawyers.
James D Nesbitt

Ah yes, blame the lawyers. Never mind that many are vigorously fighting the other side on this issue.

Good to see this hugely important subject raised here. The band Negativland have long been incisive campaigners in this area. There are many useful links about intellectual property issues on their site.
Rick Poynor

Sampling can be done well if it's in the realm of fair use. Should a group be able to essentially replay a song that's not theirs and make tons of money off of it just because people are unfamiliar with the original?

Listen to Urban Dance Squad's Deeper Shade of Soul and Ray Baretto's Deeper Shade of Soul. Coolio's Gangster's Paradise and Stevie Wonder's Pasttime Paradise and notice the lack of difference.

Sampling has faded out because it was abused. It may have originally been a creative means but it became the lazy way to make a record.

It's not just pop music that's affected by the high cost of sampling. Many older non-musical works that incorporate bits of music have to be edited to be re-released because the cost of licensing.

I'm a fan of TV comedy and have noticed the edits in some recent DVD purchases -- the old SCTV series finally got released on DVD after some careful edits, most of which are detailed at this site. The actors note in the DVD commentary track that when the show originally aired, no thought was given to music licensing, they just used what they wanted.

There's a new Harry Shearer DVD that contains his famous "synchronized swimming" bit from Saturday Night Live -- the original music (by Frank Stallone, if I'm not mistaken) has been replaced with generic synthesizer music, and any dialogue that overlaps the music has been recently (and obviously) re-dubbed.

You will probably never see a legal DVD release of the tv show WKRP in Cincinnati because there are so many tiny snippets of music used, many running behind dialogue in such a way they can't be easily edited out. To license ten or twenty songs per episode (or hire the original actors to re-dub their dialogue over library music) would be prohibitively expensive.
Pat Broderick

Julie Teninbaum

If you cant own the work you do whats the use in trying? Just shwo me the petition and where to sign. Heres the latest from
my camp's lawyers:

A proposed "Orphan Works" amendment to the 1976 Copyright Act will jeopardize illustrators' property rights and income in an effort by government to make their work freely available and alterable for public and commercial use...

On January 23, the U.S. Copyright Office proposed that Congress amend existing law to free up copyrighted work whenever the creator can't be identified or located. Current law protects an author's work upon execution without need for signatures, credit lines or copyright symbols...The proposed amendment would declare all such unidentified works to be "orphan" and freely available for use, alteration, or publication by others.

from A lawyering division of Brad Holland & Co. INC
felix sockwell

Pat Broderick: You're exactly right. Another example of a show that has suffered mightily due to this very topic is Beavis and Butt-Head. VHS and DVD releases of the show have never* included the duo's video commentary, which most agree is funnier than the sketches themselves. Licensing issues have forced MTV to remove those clips from the episodes.

* Recently, a DVD came out with a small fraction of the show's videos.
Dan Boland

"The law isn't justice. It's a very imperfect mechanism. If you press exactly the right buttons and are also lucky, justice may show up in the answer. A mechanism is all the law was ever intended to be."
California lawyer

I agree with the California Lawyer, but even a perfect mechanism would impact design. Designers have to play by the rules. Record companies have to play by the rules. Is it any different if you call yourself an artist?
"Tom Sachs"

From my point of view it's really hard to create modern art, design, music etc in US. The trends in those areas are same from years -play with the past. In Europe there is a very strict low protecting intelectual property, but possibilities are much wider. There are many artist that use only sampling methods in their works. As I konw, there are percentage limits, eg. 10% of song is free.
So come to Europe for real freedom! ;)
Michael from Poland

A great post that touched upon a very important issue of contemporary American culture. Just yesterday I saw a fantastic documentary "This Film Is Not Yet Rated" by Kirby Dick, which talked about censorship in film and how ratings not only curb down on creativity of the film makers but also change the way Americans perceive sexuality, especially when it comes to homosexuality. I doubt that this film will get a wide release since it got no rating...but look for it when it comes out on dvds. It's a treat!
maja b.

felix sockwell brings up a very interesting point (and raises a difference between graphic designers and other working commercial artists such as type designers, illustrators, and photographers). graphic designers' work usually lies in treatment and selection, in many ways similar to the working habits of djs. like djs, graphic designers 'mix', and the authorial voice comes from the assortment and its presentation; from the proportional relationship of elements and visual rhythm. in a client situation, those are services and labor which are usually fully covered by one time design fees (or hourly rates). illustrators and photographers, on the other hand, as well as models, create or partake in work that has to be licensed, and licensing fees are factored into costs on top of labor.

in many ways, graphic designers would benefit more if we could somehow find a way to 'license' our work from clients or employers. not only would it validate our work more (by being able to legally claim ownership), it would be more financially beneficial (by charging licensing fees).

of course, this isnt the case with most graphic designers. the skills one learns as a graphic designer are ones that offer the ability to isolate, extract, and pillage existing visual culture (for example, barbra krueger or peter saville, to give an art and design world examples). 'selection' and methodologies of manipulation are hard to make tangible (and therefore ownable and chargeable as property rather than services rendered), especially when the source materials belong to others. even type, the use and knowledge of which in many ways defines the profession and craft of the graphic designer, is almost always made by someone else (and is usually used in a copyright-infringing manner).

i think this is an interesting way to look at the profession of the graphic designer as we are always dealing with image culture and manipulating it, presenting ourselves as imposters whose body of work is made up of other people's work. in a sense, we manage and arrange and often claim work that other people do with or for us as our own, and i dont think its a coincidence that many american graphic designers leave behind the craft for more 'hands off' directorial positions within a few years of finishing their degrees.

interesting facts about the over dubbed television shows etc. i sense a massive opportunity in the trafficking of WKRP bootleg DVDs.

those are examples whose use of copyrighted work probably bypassed legal channels. what about commercial work whose licenses of materials will only last three years? essentially, those works will 'die' and not be reproducible. the life and death and rebirth of a copyrighted image is an interesting idea explored by pierre huyghe's project "ann lee: no ghost just a shell".

Great article, Dmitri -- thanks for posting this.

I wonder sometimes if copyright law has become powerless in the defense of artistic infringement, much in the way that detente has become irrelevant to the fight against "stateless terrorists." As someone who relies heavily on the law for the protection of my intellectual property, I say this with profound reservations. But things are changing. Fast.

In 1989, I joined the Association Typographique Internationale (ATypI), an industrial concern for typeface designers and manufacturers. At my first meeting, I sat in on what was apparently an ongoing conversation about copyright protection: typeface designs are denied some of the basic protections of law afforded to all other types of original artistic work in the US, and the working theory was that stronger copyright laws would help defend designers against plagiarism. This was the perspective of an industry beset by historically rapacious plagiarism: by the eighties, every manufacturer was offering an illicit version of Helvetica, using pseudonyms like "Swiss" or "Helios" or "Megaron" to sidestep what would be far more actionable trademark infringements. I gathered from ATypI's senior members that this problem had been going on since the very beginning of commercial typefounding.

The conversation is apparently still going on, but with less vigor, because in the meantime a far more compelling threat has emerged: user piracy. Type designers no longer lie awake thinking about competing manufacturers scheming to imitate their work, they think about the bootlegs of their fonts that are already being downloaded from illicit websites, Usenet groups, or whatever peer-to-peer network is fashionable this week.

The recording industry and Hollywood are obviously facing this challenge even more than we type designers, so it's understandable that they're trying to tighten their grip on the known quantity of intellectual property law, even as they grapple with the unfathomable unknowns of end-user piracy. (This does not address the far more alarming point you raise, regarding the selling out of a public trust such as the Smithsonian.) But it does explain the precarious situation in which sampling finds itself. Ultimately, this predicament might offer a commercial opportunity for the right creative mind: someone will come up with a better business model for clearing samples, much as the DRM employed by the iTunes Music Store has been a qualified success in satisfying the demands of both listeners and recording artists.

I hope there's a solution to be had, since my favorite Chuck D recording isn't on any of the Public Enemy albums. It's a bootleg mashup, in which some witty DJ has overlaid "Rebel Without a Pause" and a Herb Alpert tune. Somewhere, I feel confident that someone's doing something similar with Birth of a Nation and Final Cut Pro.
Jonathan Hoefler

Thanks for the article. I didn't understand exactly why this (the Showtime deal) should be so upsetting. Now I understand.

I see in today's Washington Post, though, that Congress is upset too. And is looking at withholding funding from the Smithsonian with bipartisan support, basically to the tune of what the Smithsonian is getting out of the Showtime deal. Now there will be no net gain for the Smithsonian.

I hope this puts further pressure on the Smithsonian to reconsider.

Wouldn't withholding the Smithsonian's funding just make the institution eternally dependent upon the private sector?
Jonathan Hoefler

Sampling may also be fading out because it has lost its artistic edge, becoming the "normal science" of everyday practice. Media critic Lev Manovich makes this claim in his essay "Generation Flash." Arguing that there is a new modernism in the air, Manovich says that young designers and artists are more interested in inventing new forms than sampling old ones: "It has become a cliche to say that we live in a 'remix culture.'...What was referred to in post-modern times as quoting, appropriation, and pastiche no longer needs any special name. Now this is simply the basic logic of cultural production." It is bracing to think that "post-modern times" are drifting back into the age of fairy tales.
Ellen Lupton

It appears this issue is gaining a critical momentum. The mainstream press increasingly designates space for stories and adverts warning of the perils of "pirating" and the "evildoers" associated with it. These defenders of intellectual property actively seek to enclose concepts and as a consequence propagate a new binary division, namely "anti copyright/pro copyright". This separation is an important political moment and not one to be taken lightly, indeed, it is one in which a stance can be clearly distinguished. However, those of us seeking to open up this restrictive legislation should be wary of allowing the dominant discourses to determine our position. Indeed, the "anti" or oppositional strategies are themselves defined and thereby contained by the pinnacles of power.

D/O readers may wish to read an article written by David M. Berry and myself for eye magazine. Also as an alternative to the wholly legalistic approach offered by Creative Commons (et al.) I would also point readers to the licences and manifesto of the Libre Society. Finally, to demonstrate how it is possible to implement these radical ideas into a working entity there is LOCA Records, which has been pioneering an open approach to creativity for the past 7 years.
Marcus McCallion

"Sampling has faded out because it was abused. It may have originally been a creative means but it became the lazy way to make a record."
A recent exception to that statement would be the example of J DIlla's Donuts, especially that album's standout (in my opinion) "Two Can Win".
He took Sylvers' rather sedate "Only One Can Win", added a thumping bass drum, chopped it and sped it up, turning it into a truly bouncy joint. A joint that keeps dance floors packed in my neck of the woods. There are still folks out there creatively digging for loops, plus sampling their own live playing (a guy like Madlib, for instance). It's an evolution thing, in addition to sampling obscurely (which can still be legally thorny).
Al aka El Negro Magnifico

Without notions of ownership it would it be possible to steal?
Marcus McCallion

Is it still possible to steal without the notion of property?
Marcus McCallion

Thank you!
[url=http://neaxmutr.com/zuaw/laki.html]My homepage[/url] | [url=http://egodhkle.com/rscd/vskb.html]Cool site[/url]

Great work!
http://neaxmutr.com/zuaw/laki.html | http://jajlkbqe.com/tfsd/vyee.html

I thought in the world of sampling that only a few people really understood the cultural relevance of it as an art form in the first place. I always respected the artist who used it as a form of intercontextual dialog. Spielberg "sampled" from Lucas in E.T. when Yoda walks by and E.T. recognizes him. Lucas responds back by making a "sky box in the Imperial council filled with E.T.'s
Both giving nods to the imaged world of the movies. Both acknowledging their own context.

Another reference would be Black Sheep with the track "Black with N.V." The background hook is Marvin Gaye "This ain't livin" Black Sheep paints a picture 20 years later of the the same conditions and struggles all to the same hook. The context becomes the strugle and the idea and music unites two generations of ideas. A genuine dialog between the two.

How many artist are there that can build such a vision and link consistently? This is my explanation for where it went.


Jobs | July 21