Tonight I'm going to hear jenghizkhan performing live at The Psychasthenia Society, Galapagos Art Space, 70 North 6th Street Williamsburg, Brooklyn (between Wythe and Kent). I did an interview with him here, and am curious to hear the new music he's been writing. He goes on first at 10 pm. It's free.

Tomorrow night (Thursday, December 16, 6 pm) Cory Arcangel is speaking up at Columbia U in a series called "Open Source Culture: Intellectual Property, Technology, and the Arts." Previous speakers included Joy Garnett and Jon Ippolito. Cory is strongly advised to phone this lecture in from an undisclosed location.

Everything foul about the current copyright regime is summed up in Eric Fensler doing slam-bang satirical mashups of GI Joe PSAs and getting a letter from Hasbro's lawyers telling him to remove them from his website. Hmmm, just revisited my earlier post on "Making art in the age of abusive copyright enforcement" and find that only two options for artists are still viable. Here's what I recommended six months ago to avoid the lawyer letters:
1. Stay poor. The humorless twit who sued Jeff Koons over that "string of puppies" photo would never have done it if Koons hadn't been an "art star." Very few people sue to make a point (except RIAA); it's too expensive. [Whoops, post-Fensler this now seems excessively optimistic--strike this one.]

2. Record live versions of other people's songs, or song fragments, for the sole purpose of sampling them--you avoid the "master recording" fee for the sample and only have to pay the "publication" fee. Just kidding: this is actually done by the big-bucks hiphop performers, as described in the Chuck D/Hank Shocklee interview, but it sounds fake as hell--essentially having a lawyer as a creative partner.

3. Stay several steps ahead of the shysters by mutating the sounds so they're virtually untraceable. A lot of drum and bass producers do this. You don't get that bang of recognition ("Oh that's Richard Dawson in Running Man!") but the texture of the sound is yours to play with. [Dicey after the 100 Miles and Runnin case, which applies to snippets of samples. Strike this one, too.]

4. Make completely original art. No more samples, no more collage, it's back to the Modernist dictate "make it new." It's always possible you heard or saw something subconsciously that crept into your work and could get you sued, but creativity isn't just about mixing up other people's stuff. (Dumb, I know; I just put it in in case Jed Perl stumbled across the page).

- tom moody 12-15-2004 9:34 pm

Infogrames who now owns the Atari IP went after Atariage recently and forced them to stop selling some hacked Atari 2600 cartridges and modern ports. Granted they were _selling_ them there, but they were made out of original Atari cartridges. In fact, my Combat Rock hack was usually made out of original Combat cartridges. Still haven't heard from anyone from The Clash estate though...

I've been wondering if we could get away with selling them again if we made it clear on the website that the hack was made from original Combat cartridges...

- paul (guest) 12-15-2004 11:01 pm

Can you talk about option #4 a little bit more? Why is it dumb and who is Jed Perl?
- j 12-16-2004 9:27 pm

Paul, the problem with all this is, all the shysters have to do is make a "colorable claim" that you're infringing to saddle you with a suit that takes money to dismiss. You might ultimately win on a convoluted set of facts but who wants to spend his or her life sitting in depositions and writing checks to lawyers? My guess is if Infogames bought all the Atari copyrights and trademarks those would apply to old cartridges or any other vehicle by which the code was disseminated. You might be able to prove they'd let their copyrights lapse or that Infogames' rights didn't apply retroactively, but it would cost money.

j, I'll try to answer in a subsequent post. Short answer: Jed Perl is a neocon modernist-traditionalist of the Hilton Kramer school.

- tom moody 12-16-2004 10:08 pm

yup, exactly. bottom line is they have a legal department and lots of time and we don't. So these companies can often shut down what they want whether they're right or not.

But I was talking more along the lines of just trying to negotiate with them friendly-like, not trying to battle the thing out in court. And I'm not trying to argue that their copyright has lapsed, but that if Atariage is selling hacks of Combat that are made of Combat cartridges, then effectively all we're doing is modifying Combat cartridges. Media is not duplicated, just modified a bit.

It's a little like if Negativland packaged a legit copy of Joshua Tree with every copy of U2. Sort of a DIY licensing. ;o)

Another interesting situation along these lines was at the NY Underground Film festival this year when they showed Wizard People which is the first Harry Potter movie with Brad Neely's own (hilarious) recorded narration in place of the movie's original sound. A lot of people were questioning the legality of showing it, but NYUFF rented a proper 35mm print of the movie. And there's nothing illegal about turning off the sound and playing something else in its place. He also distributes the audio on CD and bit torrent and tells you how to sync it up with a copy of the movie on DVD.

- paul (guest) 12-16-2004 10:45 pm

The problem with negotiating friendly-like is you bring yourself to their attention.

It's tricky when there's a branded product involved, because they can get you on trademark infringement, not just copyright--more specifically arguing a "dilution" or "disparagement" of the mark.

I suspect that's what's underlying the GI Joe thuggery. Dilution or disparagement is weaker than infringement, as in piracy, but all they have to do is get into court to tool you. Not that that's what you or Fensler or doing--the problem is no judge understands "art" or even "satire," they end up slotting everything into the legal regime they know.

This is an off-the-top-of-the-head assessment, not legal advice. I don't mean to scare anyone. What I'm going to say in my eventual post in response to j is, you have to fly under the radar, the problem is the bastards keep changing the radar.

Eventually the execs wise up, as they are wising up with mp3 blogs, but only after they've messed with people. And they still want to dictate terms to you.

- tom moody 12-16-2004 11:35 pm

add a comment to this page:

Your post will be captioned "posted by anonymous,"
or you may enter a guest username below:

Line breaks work. HTML tags will be stripped.