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.