Incentive to Make or Incentive to Take?

A staple part of the arguments surrounding remixing and derivative works, especially in the US where the Constitution sets out incentive as the reason for copyright protection, is whether the current copyright law is incentivizing or impeding creativity.   Proponents of the ever-growing remix culture claim that the amount of hoops and restrictions placed on works by copyright law impedes a creator's ability to develop new works using old works.  The counter argument is usually that without these sorts of restrictions (fees, negotiations, the rights-owner's ability to control their work, the very long term of copyright protection) people would actually create less because it's easier to just take something someone else has already done. 

Positions on the issue usually correspond to positions on the copyright-copyleft scale.  The copyleft side gets so caught up in putting forth examples of amateur videos and other creative remix projects that they tend to forget that the copyright's argument centers more on straight-up stealing or general non-derivative uses.

A common response among the copyleft-leaning tends to be a sort of dismissal.  The argument is about art and creativity, not just using things.  Artists choose their materials, including previous works, carefully, for reasons, etc., etc.  But there may be something to the copyright's argument: easier access - less incentive to create your own.

This weekend, this ipper had the opportunity to go to the circus, the big circus, the Ringling Bros. and Barnum and Bailey Circus.  And something happened there that made her think about the access to works for re-use issue.  The circus had the usual stuff: clowns, trapeze artists, tigers, elephants...  But it also had something unexpected, pop music.  Not a lot of pop music; just three songs, but it made her think, "was it this necessary?"  After all, a big part of the circus is the circus music.

One song a circus-band adaptation and two were actual pieces of the regular sound recording.  Each of the three pop songs was used differently.  The one that seemed to make the most sense was the circus' use of "What a Wonderful World."  The Ringmaster and a clown were fighting over the Ringmaster's hat.  He who had the hat, had control of the circus.  The clown retrieved the hat, held it up in celebration and the music started as he slowly twirled around.  It was funny because everyone recognized the song.  The song was fitting and an over-the-top reaction to stealing a hat.  A new song, written for the circus, simply wouldn't have worked as well.  This is the type of use where it seems minimalizing restrictions would increase creativity.

The circus-band adapted song was a little different.  It was, by definition, a derivative work, but it added little to the circus in the way copyleftists argue derivative works contribute to creativity in remixes.  While the great motorcycle stunt man rode around in their small metal sphere, the circus band played an instrumental rendition of Rihanna's "Shut Up and Drive."  (written by Carl Struken and Evan Rogers but recorded by Rihanna.)  It's a fairly popular song, but probably not among your typical six-year old circus crowd.  If you know the song well and know the lyrics, it sort of makes sense accompanying the motorcyclists, at least the chorus.  However, if you don't know the song well, it's just some music accompaniment.  This is the middle type of use - it's adaptive and derivative and, to some extent, transformative, but it really doesn't add much to the new work.  It's unlikely that a new piece created just for the circus, or even traditional circus music, wouldn't have worked just as well.

The third song was the copyrightist's poster child for killing creativity and incentivizing people to take instead of make.  A group of clowns, dressed like penguins, slid across a block of fake ice to "The Cupid Shuffle."  They did not do the Cupid Shuffle dance; they just slid across the ice.  There seemed to be no connection between the music and the activity, and the song was just played as it had been recorded.  In this case new music or traditional circus music probably would have added more to the performance than using this song from pop culture.

If the purpose of copyright, or even a side benefit of it, is to incentivize new creation, then it seems uses of existing works in new creative works should have less restrictions than just using something wholesale because it's easier.  But how do we do this?  Different requirements for different uses?  What distinguishes a "creative" use from a non-creative use?  How to we find a happy balance where the law both incentivizes creation and limits just taking?  Thoughts?

A Bit About Derivative Works

With all the recent talk about the merits of derivative works (euphemistically, remixes), sparked by things like the new Richard Prince lawsuit, Sita Sings the Blues' struggle, and the release of Lessig's Remix, a (very) small glimpse at the importance of derivative works in our history seems appropriate.  And, as today is Sunday, why not a small glimpse using church hymns?

Whether the argument is that there should be more compulsory licenses or that works should have less restrictions in order to better facilitate remixing, someone always seems to argue that the artist should just create everything on their own.  In some cases, people even go so far as to argue that derivative works are some how not as artistic or worthy as wholly original works (whatever that means).

The Derivative Work Right

For those who are unfamiliar, a derivative work is a work that includes an existing (or part of an existing) work.  In some cases, the pre-existing works can be central to the new work or even the subject upon which the new work comments.  In other cases, the pre-existing works are ancillary, just the final little flourish or placed there in the new art for only reasons the author knows.  In all cases (under US Copyright law, and in many cases in the rest of the world) the making of derivative works is one of the rights included in the copyright holder's bundle of rights.  (17 USC 103.)  This does not mean only the original creator can create a new work based on this old one.  It does mean that no one can legally use a work still protected by copyright to create a derivative work without permission from the copyright owner.  This permission usually comes in the form of a license.

One place we can look to see the importance of the derivative works right is the list of Creative Commons licenses.  Two of the four basic licenses, which can be combined in different ways as the author chooses, are related to derivative works.  The most obvious is the nd license, no derivative works.  This license means, you guessed it, others are not free to use the licensed work to create derivative works without permission from the rights-owner.  The other license related to derivative works is the sa license, share alike.  This licenses allows others to use the work to create their own derivative works but requires that the new derivative work be released under the same conditions as the original work.

Derivative Works in Church

Derivative works have played an important part in forming many of the world's classics.  The list of famous works based on previous works could go on for days.  Here, we are going to look at one very small subset of culture where derivative works have played a large role: church hymns.

A great number of church hymns are derivative works by their very nature, being bible verses set to music.  There are also a large amount of hymns created by setting old poetry to new music or new lyrics to old tunes.  The United Methodist Hymnal lists over 60 tunes used by more than one hymn in the hymnal, The Presbyterian Hymnal has over 90.  In fact, it's harder to find a hymn where the lyrics and music were written by the same person, or even in the same year, than it is to find hymns created by combining a pre-existing work with something else.

The classic hymn "All Creatures of Our God and King" is a great example of church hymns combining different works.  The words were written by St. Francis of Assisi sometime around 1225.  One English translation was done by William Draper in the early 20th century.  (The Methodist hymnal says 1925; the Presbyterian hymnal says 1910.)  The tune is an old German tune from 1623, Geistliche Kirchengesang, which is also used in several other hymns.  And the harmony for the tune was added in 1906 by Ralph Vaughan Williams.  Incidentally, both the Methodist and Presbyterian hymnals list the hymn as still being under copyright protection.  The Methodist hymnal has an arrangement marked (c) 1989 and the Presbyterian hymnal says (c) 1926 (renewed). 

As you can see, this classic hymn was created by the work of many different people over many (many) years, each contributing their particular talents to the work.  Could Ralph Vaughan Williams written an entirely new song instead of just a harmony to go along with something that already existed?  Could someone have written completely new words for the German tune instead of adapting St. Francis of Assisi's poem?  Sure, but it wouldn't be the song we know.  Can you imagine "Joy to the World" without Handel's music?  Or "What Child is This" to a tune other than "Greensleeves?"

Derivative works are just important in our history and culture as new works.  That doesn't mean anyone should automatically be free to use anything anyone else has already created.  But, it does mean we shouldn't dismiss someone's creation as not worthy of protection, support, or appreciation, simply because it builds on what came before it.