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.

Works Cited

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.

The post ‘The Free-Appropriation Writer’ in the New York Times first appeared on Tom Tenney.

After Media (Hot & Cold) begins with Navas’ discussion of Marshal McLuhan’s 1964 theory of “Hot and Cold” media, published in Understanding Media: The Extensions of Man.  McLuhan defines “hot”  media as those which are  loaded with information and streams one-way towards a passive receiver.  Cold media is “dumber” and requires more participation on the part of the user.  The first sentence I have scribbled in the margins of my printout of Navas’ post is:  “Hot/Cold are irrelevant.  Why are we even still talking about this?  We need a new metaphor, new philosophers.”    I wrote this because it seemed like media was a lot simpler when McLuhan was writing, and could be boiled down to an understandable dichotomy, whereas today media has gotten far too complex for binaries.    As it turns out, I scribbled a bit too soo, as this is partly what Navas’ essay turned out to be about.

One of Navas’ main theses in this article is that media is being “cooled” by the devices on which they are delivered, but makes the point (often) that this is not just driven by technology, but he implies that corporate greed is also at work, in that “the cooling of hot and cold media is used to push people to consume increasingly.”  Later in the article, he says [the cooling has] “taken place out of economic interests from media developers who need to find ways to stay productive.”  I won’t say there isn’t some truth to what he’s saying, after all profit is in fact the raison d’etre of pretty much all corporations. However, having worked in digital media for television for the past 12 years, I can say with some confidence that it’s less about some corporate conspiracy to “drive for profits” but largely that media is just following technology.  And why shouldn’t it?  What’s wrong with staying productive?  This is what businesses need to do to survive.   Also, with this cooling of media, users expect to have more control over the media they consume, and it’s imperative that content creators are able to live up to that expectation and deliver a positive experience in that regard, which means making the content available on as many platforms as possible and as often as possible.  It only makes good business sense to do so.

Another of Navas’ arguments is that all media is cooled by the kinds of devices they are now delivered on – i.e. iPhones, DVRs, etc. He says, in a nutshell, that film and TV are now treated exactly the same, as they can both be consumed on the same device.  However, he says that this doesn’t make the experience for the user (watching a film, say) much different for the viewer, only that the method of delivery has “cooled” by making it more distant from the original way it was consumed.  To me, this begs a question that I think is VERY relevant today, and that is: How do we define media in 2009?  Do we define it as content or delivery? Because it seems like the two are getting further and further apart.   In the 60’s, when McLuhan first penned his hot/cold theory, content and delivery were all part of the same experience.  TV shows and the TV itself were both considered parts of the experience of “Television,” Films were shown in cinemas, and it was impossible to consider the content out-of-context.  Today, content and distribution are two completely different things, and increases our distance from the original theory (does this make the theory ‘cooler’?).  I think we have to define it as both, and this makes hot/cold theory infinitely more complex.

About midway through the article, Navas says “The telephone, which McLuhan defined as cold media, is becoming a bit hotter.“   He gives examples of Skype, and the cell phone packed with different kinds of media.  I would argue however, that this is an issue of nomenclature.  Neither Skype nor the iPhone are “the telephone,” they are communication and media devices – it just so happens that they evolved from the telephone and kept it’s name, but there is very little resemblance between these new technologies and the “telephone” that McLuhan was writing about.   A few paragraphs later, it almost seems like Navas suddenly realized this when he said “What is puzzling about this development is why call any machine a specific name if it is designed to do more than one thing?“  Exactly.

Discussing the heating of the contemporary media landscape (as opposed to the cooling of the actual media via their delivery networks)  Navas states, correctly I think, that people increasingly “rely on mechanical mediation to cope with the changes of the world.”  However, I think he veers into the hyperbolic when he says things like “people are relying less on their physical relation to their surroundings” because of things like GPS.  I would argue that these types of devices are actually enhancing our relationship to our surroundings, making it easier to explore territory we might not have explored a decade ago.  Take, for example, the Yelp application for the iPhone – a GPS-based tool that can be used to find restaruants and services in your area, and give you real user reviews on all of them.  I have used this app numerous times, and it has guided me to places and experiences that I probably wouldn’t have known about otherwise.  He also sites iTunes as the “best example of convergence,” (although I would take issue with this as well – Amazon and last.fm are, I would argue, two better examples of convergent technology that make the process of discovery easier for the user – I find iTunes UI unweildy) and states that “it has been cooled, both out of necessity for people to deal with the content it delivers, as well as the sake of making a profit.”  Again with the profit.  Surely that’s a motive, but I would argue that the desire is to make a profit by delivering the best possible experience for the user.

Finally, in his conclusion, Navas seems a bit critical of convergent media in that “the media does not [sic] encourage consumers to think critically about issues, but simply to express what they think.”  First, is it media’s job to encourage people to think critically, or is that the function of education?  And b) when has media ever done this?  Was Television encouraging critical thought in McLuhan’s day?  Navas writes as though we’ve lost something that I don’t think we ever had to begin with.  Interesting that he is critical of blogs in that they only encourage people to express opinions and “simply reinforce what they believe.” And he says this in….. a blog post.  I would argue that the fact that this, my (super long) blog post reacting to his (even longer) blog post is a refutation of that statement as an absolute.

Returning to my first point about hot/cold being irrelevant today, Navas makes the important poing that “McLuhan’s theory of hot and cold might become a historical reference much like the typewriters are historical predecessors to the computer.  How people think of media will no longer depend on binaries, but rather on nuances according to the accessability and desires for entertainment and necessity to stay informed.”   This is exactly what I scribbled at the beginning, but to it I will add (or reiterate rather) my point that we need new metaphors and new philosophers to create those metaphors.  The problem is that technology is racing ahead so quickly, that as soon as a theory is put forward, it is made obsolete or irrelevant quickly.  It’s a futile chase, kind of like the Achilles/tortoise paradox.  Navas acknowleges this at the very end of the article when he says “The reason why it is so difficult to evaluate changes critically is because culture and media constantly shift at an ever-increasing rate“.  In the meantime, I guess we’ll have to try and make the best of McLuhan.

The post Media Hot & Cold Revisited first appeared on Tom Tenney.

The segment made me think of Duchamp’s prediction that “the artist of the future will simply point his finger.” Although comically brilliant, there’s actually very little “comedy” writing in this piece…. it is its own absurdity that make it art. Stewart is simply putting a frame around the everyday, and pointing to our complacency (and complicity) with media that resorts to audio/visual stimuli and rhetorical tricks to subvert reason and present us with a version of reality that is almost Pirandellian.

What is Stewart pointing to, exactly?

* Hannity’s use of edit room technology to subvert reason and appeal directly to the emotions – exactly what news is NOT supposed to do. After showing Hannity’s montage of seemingly random Obama sound bites set to menacing background music, Stewart points out, simply: “That made no sense. Yet, still, for some reason I am angry and afraid. It’s as though anything you set to grainy footage and the soundtrack of The Omen seems menacing.” He then presents clips from “Dora the Explorer” with the same production trickery. Point made.

* He brilliantly deconstructs the language Lou Dobbs uses for the way it makes political inferences while disguised as unbiased reporting.

* Glenn Beck’s overt hypocrisy in saying Obama has “a deep-seated hatred for white people“, followed literally a minute later by the statement, “I’m not saying that he doesn’t like white people“. It seems almost too easy – yet Beck seems to be relying on the short attention spans and unwillingness of most Americans to actually THINK about the stories they are told. In this way, Stewart implicates all Americans in the douchery.

THIS is exactly why the Daily Show IS news, not “fake news.” My Oxford Dictionary defines “news” as:

“newly received or noteworthy information, esp. about recent or important events”

If we accept this definition, then certainly exposing the way the media twists the day’s events into propaganda is NEWS in and of itself – but who reports news on the news? Media CANNOT be exempt from the “events” that news is supposed to place under the microscope of critical examination. But isn’t it entertainment? Absolutely. But in this case, it’s not only that it informs AND makes us laugh (the “hybrid” model), it informs precisely BECAUSE it makes us laugh (an integral model?). By exposing the absurdity, it informs. If we don’t laugh, if we don’t “get it”, then we have not been informed.

I’ve said enough. Just watch the clip… it’s amazing.

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