On February 26 2010, in a piece called “The Free-Appropriation Writer,” The New York Times’ Randy Kennedy reported on the recent controversy over German novelist
Helene Hegemann, and whether the use of another writer’s work in her novel was theft or an allowable form of “sampling” or “remix.”
Kennedy’s article misses the central issue around the copyright/appropriation debate – the idea/expression dichotomy – and further, the article misrepresents the interests of artists and copyright activists. Helene Hegemann’s actions were, in fact, plagiarism, Kennedy’s presentation of the issue reflects a cultural bias towards ownership of expression, and away from the idea of copyright as a trade agreement designed to encourage creativity and serve the public good. His article proposes to examine both sides of the appropriation issue, but the result of Kennedy’s bias is a report that uses the Hegemann story as a platform to condemn an entire area of critical thought and opinion, based on the actions of one proverbial bad apple.
The Idea/Expression Dichotomy
In a 1996 article in the Yale Law Journal, Neil Netanel wrote, “As all authorship involves a degree of borrowing from earlier works, an overly broad copyright represents an unacceptable burden on creative expression.” At the center of the controversy reported in the Kennedy’s article is a concept that he only barely acknowledges in his piece, known as the “idea/expression dichotomy.” This is essentially a legal construction, dating back to the founding of the United States, which differentiates between an idea and the explicit expression of that idea. In Copyrights and Copywrongs, Siva Vaidhyanathan claims “James Madison and others insisted that American copyright clearly protect distinct expressions of ideas for a limited time, while allowing others to freely use, criticize, and refer to the ideas that lay beneath the text.” (28) The question of ideas vs. expressions that has gained attention in the past 20 years is typified by the legal conundrum over digital sampling in hip-hop, i.e. is sampling an idea or an expression? What is the language or the alphabet of sound? These is just two of many difficult questions, ones that should seem significantly clearer in cases of literature.
Kennedy presents examples of two literary artists who appropriate – Helene Hegemann and David Shields. The former is a 17-year-old novelist who has, admittedly, lifted “sizable chunks” of another writer’s work and claimed it as her own. To me, this is the textbook definition of plagiarism, and a clear case of the idea/expression dichotomy at work. What Hegemann took was not the reworking of an idea, but the specific, letter-for-letter expression of one, and did so without giving attribution. This is exactly what, rightfully, should be protected for artists through copyright law. Shields, on the other hand, created a new work by using the words of other writers as cultural reference points. He made no attempt to hide this, and cited his sources clearly at the end of the book. In scholarly work, this is known as quoting – a sine qua non of academic research, allowable both legally and culturally. It’s my view that artistic work should enjoy the same protection; for just as scholarly research cannot exist without relying on the work that went before, neither can artists create in a cultural vacuum. They need reference points and permission to create new expression on top of old. Without this freedom to appropriate, the recontextualization of cultural and advertising icons intrinsic to the Pop Art movement could have never occurred; nor could hip-hop, whose very inception was a product of the reuse of “beats” from other sources. Kennedy touches on this point briefly, comparing the idea of Hegemann’s work as ‘remix’ to ideas of appropriation associated with the works of Warhol and DJ Dangermouse. He presents the argument that the work of those artists was a “recontextualizing of cultural artifacts,” whereas Hegemann has less of a defense because she lifted directly from an unknown blogger. This is where I found myself agreeing with his piece the most, although its main argument still misses the point. It shouldn’t matter how iconic the referents are, only whether the artist referring to them creates a transformative work that adds cultural value to the original. Both Dangermouse and Warhol used existing commodities from our cultural lexicon as raw material to create unique works of art. Whether Dangermouse had used an unknown rock band or Warhol another brand of soup should be irrelevant; neither claimed that they created those things – they referred to them and used them as source material in their work. What Hegemann did, on the other hand, was deceitful – she failed to give credit or acknowledge her appropriation in any way, and in the process gave responsible remixers like Warhol and Dangermouse a bad name.
Presentation in The New York Times
Kennedy’s writing style, and the article’s presentation in The New York Times, raises questions about Kennedy’s particular cultural bias, and the economic interests that The New York Times represents. The fact that this piece was published in the Times made me wonder: to what extent is the medium preserving its own self-interest? The Times epitomizes centralized big media, and is threatened by the same new sharing technologies that are causing transformations in the movie and music industries. All have a vested interest in eviscerating fair use and increasing corporate control over content.
The very language Kennedy uses to paint his picture is telling. In a personal musing on collaboration in the arts he refers to the word ‘we’ as “the communal pronoun,” subconsciously pairing collaboration in the minds of his readers with images of the latest American bugaboo, socialism. He seems comfortable equating responsible collaborative creation with reckless piracy when he calls remix “the use of anything at hand that suits [the artist’s] purpose.” This is an outright misrepresentation of a responsible remix culture, which uses collaboration and cultural reference carefully and selectively as a way of making art.
In using Hegemann, Shields, and “copyright advocate” Patrick Ross as sources, Kennedy presents artists and activists whom he claims represent different sides of the copyright/remix issue. He describes the two viewpoints as the “culture of borrowing and appropriation on one side and, on the other, copyright advocates and those who fear a steady erosion of creative protections.” He seems to be making the claim that “copyright advocates” are simply fighting for the “creative protections” of artists. In fact, most of these “advocates” are big media, publishers and entertainment corporations, that would turn the concept of copyright – one that our founders defined as a trade agreement where the creator could claim a monopoly on their work for a LIMITED period of time – into private property over which they have perennial control. Similarly, he does not fairly represent advocates of copyright reform, who are NOT, by and large, against copyright or protection of creative works. Instead what they advocate is what our founders intended: a monopoly granted to the artist for a limited period of time, with exceptions for fair use. They reject the idea of privatizing culture in favor of a free and open exchange of ideas. This may not serve private interests and media corporations, but it serves the public sphere by allowing artists and writers to criticize, comment on, quote, reference, and build upon previous works, and publishers to offer literature to the public at a reasonable cost after a reasonable period of time. By equating Hegemann’s irresponsible behavior with the concepts of remix, reuse, and copyright reform advocacy, he grossly misrepresents both sides of the issue.
While the actions of a lone plagiarist are unconscionable, so too is presenting that plagiarist as representative of an entire culture of artists and creators who are fighting against corporate control of creativity, and for fair and reasonable copyright law. In the past century, big media have managed to have the copyright terms lengthened from just 28 years to upwards of 95 years, and are fighting even now to ‘own’ creative works in perpetuity. If we are to remain a free, open, creative and innovative culture, it’s imperative that we take a closer look at the implications of these laws, and make reforms that allow artists access to their culture in order to build upon it.
Kennedy, Randy. “The Free-Appropriation Writer.” New York Times. 26 Feb 2010, New York ed.: WK3
Netanel, Neil. “Copyright and a Democratic Civil Society.” The Yale Law Journal. 106.2. (1996): 283-387.
Vaidhyanathan, Siva. Copyrights and Copywrongs: The Rise of Intellectual Property and How It Threatens Creativity. New York: NYU Press. 2001.