Copyright isn’t perfect, but at least it forces artists to be original: Peter Nowak

We already have enough mash-ups

Peter Nowak 1
(Photo: John Foxx/Getty)

(Photo: John Foxx/Getty)

“Only 24 hours in a day, well only 12 notes that a man can play.”

That’s a line from Shadrach, a song on the Beastie Boys’ seminal 1989 album Paul’s Boutique. I know this because one of my more obscure and less useful talents is the ability to recite Beastie lyrics, chapter and verse, at the drop of a hat (I can also beat a biter down with an aluminum bat). I used to joke back in university that I had a PhD in Beastie-ology.

As a big, big, big fan of the band, I’ve been following very closely the controversy regarding startup toy maker GoldieBlox’s use/parody of a Beastie Boys song in one of its video ads. In a nutshell, the company recently took Girls, from the album Licensed to Ill (1986), and gave it new lyrics. While the words to the original song were misogynistic – there is some debate as to whether it was itself a parody – the toy folks cleverly flipped it around to be the complete opposite. As a company geared toward making products that encourage girls to get interested in fields such as science and engineering, the lyrics instead mock tropes about how they’re expected to play with dolls and “girly” toys that are pink.

It’s a well-done send-up with a message that pretty much no one can disagree with. Where it gets interesting is that GoldieBlox didn’t ask the Beastie Boys for permission to use the song.The company actually went further and pre-emptively sued the band, claiming that the video is a parody and that it has “fair use” rights to the song, a provision in U.S. copyright law that exempts parodies from litigation (the similar “fair dealing” clause does much the same in Canada and the U.K.).

The surviving members of the band didn’t see things that way, but they were typically classy about it. In an open letter, Mike D and Ad Rock congratulated GoldieBlox on its clever and smart statement, but also reminded everyone of what the company was doing:

As creative as it is, make no mistake, your video is an advertisement that is designed to sell a product, and long ago, we made a conscious decision not to permit our music and/or name to be used in product ads. When we tried to simply ask how and why our song “Girls” had been used in your ad without our permission, YOU sued US.

One last kicker to the whole thing is that band member MCA, who passed away last year from cancer, stated in his will that none of his music could be used in a commercial, ever.

All of this has led to some debate over the finer points of parody, copyright and mash-ups. A number of observers, including Mathew Ingram at GigaOm, suggest the situation is more evidence that copyright is broken and that we’re all worse off for it. As he writes:

Are we better off when record labels and their lawyers can prevent artists from using even short clips in remixes, or from creating parodies? I don’t think so. How many potential musical or artistic innovations like hip hop — which featured artists like The Beastie Boys “ripping off” dozens of songs in order to create something new — have been smothered because someone couldn’t afford to licence the content they wanted, or was afraid they would get sued?

That seems like too easy of a contrarian argument to make. As everyone seems to agree, the whole point of copyright in the first place is to encourage the creation of new art. After all, if it was easy to rip someone else’s stuff off and make money from it, why wouldn’t everyone just do that rather than go through the trouble of making something entirely new and original? At its very core, copyright law is thus a sort of monopoly protection that gives creators the sole right to make money from their work, which has the side effect of forcing others to do their own thing.

Does this right get abused? Absolutely, as the often-cited example of Prince suing over a baby dancing to his music attests to. But there are also many, many examples where copyright holders let things slide, either because they don’t care or they don’t know that their work is being mashed-up, parodied or otherwise used. Indeed, these undocumented examples – which become obvious in just a few minutes of YouTube surfing – far outnumber the few cases that do arise and make it to the public eye (typing in “mash-up” turns up nearly eight million results). Whether or not a particular example becomes an issue comes down to the demeanor of the artist in question and how they view such things, but a few bad lawsuits don’t mean the whole system is broken.

While there is reason to believe the Beastie Boys might indeed have sued GoldieBlox, there is also equal reason to think they may not have. The band – and MCA especially – have a long history of supporting righteous causes, from Tibetan freedom to women’s rights. They may indeed have let the parody slide had the toy company not first poked the proverbial bear with the proverbial stick.

That’s why many people, myself included, consider the commercial to be a cynically calculated ploy designed to attract attention to the company’s products, rather than some bigger, real statement about issues such as fair use and parody. GoldieBlox’s subsequent apology and claim of ignorance to MCA’s will, coming after the mission of attracting all those eyeballs was accomplished, lends credence to that theory. If they were really fans, as they say they are, they would probably have been aware of his wishes.

But to return to the main issue, it has also been suggested that an album such as Paul’s Boutique probably couldn’t be made in the current day and age. Containing as many as 300 samples, the album is itself very much a mash-up and an artifact of a less restrictive time, legally speaking. There’s probably no way an artist today could manage such a feat, at least not without already possessing the riches necessary to pay all the inevitable licensing and royalty fees.

Contrary to what some observers are saying, that may actually be for the best. Mash-ups are great and we certainly have no shortage of them – remember, there are tons upon tons that don’t get sued out of existence – but do we really want a culture driven by them? We’re already suffering from so much sequel-itis in so many areas of arts and entertainment – are more mash-ups really all that desirable?

This is where the original point of copyright reasserts itself: The legal protections that creators enjoy are forcing other creators to do something original instead.

What if today’s restrictive laws had indeed been in place in the 1980s, when the Beasties were just starting out? What if Paul’s Boutique was indeed impossible to make back then as it is now?

We know in retrospect and with subsequent evidence that this probably wouldn’t have mattered to the band and their success because they were immensely creative individuals to start with.

Tougher sampling laws certainly contributed to the group using more of its own instrumentation on subsequent albums. Check Your Head (1992), Ill Communication (1994) and Hello Nasty (1998), on which the Beasties played their own instruments and relied much less on samples, sold much more than Paul’s Boutique did. Sabotage, from Ill Communication, is arguably their biggest hit, and it’s sample-free.

There are many reasons for the bigger success, but the public’s realization that this was a truly innovative and creative bunch of guys – samples or no samples – probably had a lot to do with it. Would the Beasties have become bigger and bigger, eventually landing in the Rock ‘N Roll Hall of Fame, if they had just continued to rely on sample-based mash-up music? Maybe, maybe not. We’ll never know – but we do know where original work rather than mash-ups landed them.

It can be said that all of human culture – whether it’s music, writing or even technology – is one big mash-up and that there really isn’t anything new or original to be done. To paraphrase Isaac Newton, if anyone does do anything new, it’s because they are standing on the shoulders of the giants who have come before. The Beasties lyrics at the top of this post, about how there are only 12 notes that a man (or woman) can play, sums it up even more succinctly.

But that itself is too cynical an interpretation of the mash-up, since people are managing to consistently come up with new things all the time despite only having the proverbial 12 notes to play with (as MCA rapped, “I got more rhymes than I got grey hairs, and that’s a lot because I got my share”).

While there is no doubt that fair use is a principle worth protecting and that there are some people abusing the fundamental principles of copyright, there is also little harm in cracking down on its most egregious violations as a way to encourage something new. As a big fan of the Beastie Boys, egregious is certainly what GoldieBlox’s exercise comes off as to me. Copyright laws are far from perfect, but in this sense they’re also far from broken.

One comment on “Copyright isn’t perfect, but at least it forces artists to be original: Peter Nowak

  1. Please explain why life of the author plus 70 years is necessary for “creativity” when 20 years is sufficient for patents. It seems to me that there is far too little creativity by those who rest on an absurdly long level of government protection.

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