“They’ve said it all, haven’t they?”

Before winning two Tony Awards and a Grammy Award for the Broadway hit Spring Awakening, Duncan Sheik gained notoriety for his hit song “Barely Breathing,” which spent a record fifty-five weeks on the Billboard Top 100. The song represented Sheik’s only major commercial hit, although his full repertoire of songs highlight more depth and diversity of musical content. For instance, known initially for songs of love, lust, and loss, Sheik responded with songs that represented a commentary of the society around him. “That Says it All,” from 1998’s Humming, examined how people showed a willingness to settle, thereby sacrificing their overall happiness. Moreover, by settling, Sheik believed people showed a willingness to accept the status quo.

Sheik railed against such thinking. Yet, to prove his point, he looked back, singing about the contributions of his musical heroes. John Lennon, Brian Wilson, Bob Dylan, Jimi Hendrix, and, before the 1999 VW Cabrio commercial, a then-relatively unknown Nick Drake all appeared in “That Says it All.” For Sheik, his heroes refused to compromise on their artistic visions, pushing the envelope to create music that expanded the boundaries of rock and popular music. Sheik connected the happiness of his heroes to their musical visions. They searched for and implemented new techniques and musical ideals, refusing to remain compromise on their musical visions by producing traditional, but commercially-appealing, records. In the process, they created music that defined a generation, but also music that laid the foundation for other musicians to expand upon.

Sheik maintains that new ideals remain out there for those eager and willing to search for them, rhetorically asking, “They’ve said it all, haven’t they?” Obviously, Sheik’s musical heroes have not said it all. More ideals remain, waiting for conception and development. However, as I hear Sheik sing, I cannot help but think that his heroes lived in an era more conducive to musical exploration. That seems a far cry from today, even though our society has made tremendous technological advances. In that sense, I cannot help but to also think about Lawrence Lessig’s lecture on “How Creativity is Being Strangled by the Law.” Today’s technology has provided our society with new and democratic ways of communicating, whether through music or even comedic skits.

Yet, as Lessig noted, the law has yet to catch up with the new rules established by the new technologies. The law, generally speaking, operates under the concept that ideals represent a form of intellectual property that warrants compensation in exchange for use. For instance, through the Sonny Bono Copyright Term Extension Act, Congress extended the copyright term from the life of the author plus fifty years to the life of the author plus seventy years. In terms of corporate authorship, the term was extended from seventy-five years to 120 years. The Bono Act did not account for the new technologies that would emerge in the fourteen years after its passing, nor did it account for the new questions that arose. According to Lessig, fair use has been connected to piracy, though a big difference exists between both concepts. YouTube shows this blurring of boundaries through the number of videos taken down because WMG submitted a copyright claim.

Where do we go from here?

Lessig believes that the solution stems not only by having creators embrace free, non-commercial use of their material, but also through businesses encouraging and enabling the freer use of material. In the process, as Lessig maintains, competition will develop between this new system and the current system in place, much like the competition that developed between ASCAP and BMI. I am intrigued by Lessig’s idea. To be sure, there are high-profile creators that would be unwilling submit their material for free, non-commercial use. There are, however, high-profile creators that would express an interest and willingness to submit their material to this platform, not to mention lesser-known creators trying to establish themselves. Plus, with businesses promoting and enabling the platform (i.e. YouTube), you have the competition that Lessig talks about.

The technology of new ideals exists, accessible and useable to a growing number of people of all ages. Yet, in an age where technology offers a vehicle to push the envelope through the presentation of new ideas, the law in its current form is holding technology down, muting the potential of new ideas that Sheik talked about all those years ago.

Addendum: I commented on David’s Starting to Bring it Together.

I also commented on John’s John’s The Fate of Creativity and Statistics.

Some of My Favorite Songs That Pushed the Envelope

The Beach Boys: “Mrs. O’Leary’s Cow (Fire)”

The Beatles: “Rain”

Jimi Hendrix: “All Along the Watchtower”

Nick Drake: “Pink Moon”

Balance and Fair Use

I often find myself stuck “in between” when it comes to issues of fair use and copyright.  As a historian, I want to examine and write about issues that a diverse group of people care about, thereby allowing my work to engage in a wide audience.  However, at the same time, I came from a legal background.  I spent a thirty minutes (okay, more like a year) in law school before deciding to pursue my graduate work in history.  As a result, I understand how intellectual property has a monetary value, and how creators have a right to receive compensation.  I hope that, one day, my work will be published and available for purchase.  While I want to receive compensation for my work, I also want people to have access to it, use it, and learn from it.

I think balance represents the major theme from this week’s readings, and it can be seen in the phrase like open access.  As John Willinsky noted, “this move to open access does not mean that the work is free.  The reader still has to find her way through considerable machinery to the Internet.  It does not mean that the author is paid for, in part, as a scholar employed by a university or research institute.”  Open access provides for the free, immediate use of materials, but not in a manner where people are allowed to “stick anything up on the Web.”  In other words, material can reach wider audiences in such a manner as not to hinder or harm the property rights of the creators.

Here, the doctrine of free use can illustrate the level of balance that exists when it comes to issues of copyright and open access.  Roy Rosenzweig and Dan Cohen note that scholars can cite fair use based on:  1) the character of the use; 2) the nature of the copyrighted work; 3) the amount and substantiality of the work used; and 4) market effect.  Rosenzweig and Cohen traced the legal history and nuances surrounding fair use.  While legal consultants like Mary Minow noted that the courts heavily way the market effect, the Supreme Court in one 1994 case noted that one factor does not have greater weight than the other three.  Ultimately, as Rosenzweig and Cohen conclude, scholars should not play fast and loose with the fair use doctrine, but that does not mean that they should be timid either.  Fair use, after all, remains an important part of scholastic inquiry and should not be left to rot, nor should it be held captive to some of the unfounded demands of rights holders.

Like anything else, scholars have to use caution when producing their work, especially if they are writing about people currently living.  The issue here is not copyright, but issues of privacy, slander, and libel.  Again, balance represents an important key.  Scholars do not have the green light to paint people in a completely negative light.  Equally important, they should not write timidly either.  Lawyers have a strong burden to meet in order to prove slander or libel, especially if their client is a public person.  In that instance, the burden becomes more difficult.  Scholars, thus, should write aggressively, but offer balance in their critiques of living people.  In short, the always sought after goal of fairness and balance should be the objective.