Can I pay for this with my good intentions?

There are a lot of big ideas in Lawrence Lessig’s talk REMIX: How Creativity is Being Strangled by the Law and Chapters 2 and 9 of Lewis Hyde’s book Common as Air: Revolution, Art and Ownership. Big ideas that are certainly related and relatable yet too numerous and too large for me to pin down and fully synthesize in this short blog post. What I will say, though, is that the focus in these works on the creations and not the creators concerns me. The big ideas in these works address the survival and freedom of creations, but what are we doing to address the survival and freedom of creators? What about the common of estovers—the right of subsistence—Hyde describes? The common of estovers meant that a commoner would not lack food, fuel, or shelter. If creators of culture have a “copyduty” obligation to make their work available to benefit the community in the commons, what obligation does the community have to ensure the well-being of the creator? Hyde brings up an idea from Michael Walzer’s Spheres of Justice that “…a basic form of inequality, if not tyranny, arises whenever one sphere of social life begins to command the others” (p. 222).  How can we protect the cultural commoners from the tyranny of the need to earn to survive in a capitalistic economy?

In Common as Air Lewis Hyde states that “…our practices in regard to property fit us or unfit us for particular ways of being human” (p. 41). I would argue that current capitalist economic practices “unfit” us for being the types of humans that give away our labor for free. Grocery stores accept money in exchange for food—if you need to make money to feed yourself, how can you afford to give away your labor? How can people who concentrate their energies on creating art and ideas afford to buy land or houses if, as Hyde asserts, “…art and ideas, unlike land or houses, belong by nature to a cultural commons, open to all” (p. 214)? I wholly support making culture and knowledge freely accessible to all in a cultural commons, but how are those that contribute to the commons supposed to support themselves? Are creators of culture and knowledge expected to work a day job to buy groceries and pay rent and then work the night shift creating culture to give away for free? Energy is not limitless and mental fatigue is a real thing.

According to Lawrence Lessig’s talk REMIX: How Creativity is Being Strangled by the Law, creativity is being strangled by the law. I disagree. I mean, I agree with Lessig’s points and his argument, but saying the law is strangling creativity is like saying “guns kill people”. The truth is that people kill people using guns and capitalism strangles creativity using the law. To loosen the stranglehold copyright law has on creativity, Lessig and others created a set of alternative Creative Commons licenses, which give creators finer-grained control of how their works are made available or restricted for public use. I am concerned that we are distracted so much by the instrument used to commit the crime that we fail to see who’s holding it. As optimistic as the creation of things like Creative Commons licenses makes me about the possible existence of a cultural commons, I won’t be truly convinced of this possibility until I see the development of a creative commons economy. Hyde states that for the commons to endure, it must be protected from despotic dominion and the market. We must remember here that the commons is not just the land, but also the rights, customs, and the social structures governing these uses. If things like Creative Commons licenses loosen the grip of law on cultural creations, what equivalent do we have protecting the cultural commoners and their ways of interacting from the squeeze brought on by the need to survive in a capitalistic society?

6 thoughts on “Can I pay for this with my good intentions?

  1. Ian Phillips Post author

    It seems like there may be something of value in EFF’s proposal for the academic community. What would happen if a bunch of academic journal editors got together and created a journal collective? I haven’t done the math, but it seems like everyone involved in the production and consumption of these resources, except for the publishers, could stand to benefit from cutting out the profit-seeking middleman.

  2. Michael Mandiberg (they/them)

    The embed code didn’t work in the comments… try this link for a TED talk about the lack of IP protection in the fashion industry, and why that hasn’t stifled creativity or commerce. This talk may end up focusing too much on the objects and not the subjects of the law, but it provides a conversation about… estovers.

    Maybe a better version of this is to look at the Electronic Frontier Foundation’s proposal for Voluntary Collective Licensing, a schema for paying artists:

    The concept is simple: the music industry forms several “collecting societies,” which then offer file-sharing music fans the opportunity to “get legit” in exchange for a reasonable regular payment, say a total of $5-10 per month… The money collected gets divided among rights-holders based on the popularity of their music.

    I think the reason why Creative Commons licenses, and this EFF proposal are so important are the way that they use the existing tools and structures to open up other possibilities that benefit artists. If there is anything that Lessig makes clear (in just about everything he writes), it is that the law has not adapted to changes in the changes in the use of cultural objects. CC licenses and this EFF proposal are efforts to change the frameworks around this use and reuse without changes in the law. Lessig pursued a concurrent campaign in the courts which failed. These non-courts based approaches are examples of Hyde’s beating of the bounds.

    I also would underscore Hamad’s observation that the vast majority of artists writ large do not support themselves directly from their work. I don’t know of an authoritative longitudinal study on this, but it is my understanding that the predominance of day jobs or trust funds is not a new phenomenon.

  3. Pamela Thielman (she/her)

    @Hamad Sindhi
    I want to press on your idea of bifurcation just a little bit. I don’t think that you are wrong that class is a significant factor in who can become part of the restricted category of “artist,” but there are so many things that come into play in relation to this and there are–particularly today–a significant number of examples of people pursuing art vocationally who do not fit the (affluent, white, male) image of earlier periods of cultural production. But you are right in identifying a difference between culture producers more broadly and “artists.”

    I actually think that people identifying as artists have an easier time with regard to copyright. Or, at least, they are more likely to be part of a discourse about fair use, copyright law, and the like. “Artists” stand a better chance of having their use of copyrighted works recognized as legitimate expression. Or, at least, an attempt a legitimate expression. Not everyone gets extended the benefit of the doubt in that way. Look at how many of the videos from the Let’s Go Crazy site are now dead links with some kind of notice relating to copyright issues (and those are manifestly educational!).

    As I write this, I feel like I’m failing to make the point that I had set out to make. Maybe what I am doing here is agreeing that the categories are there, and that they are obstacles to free cultural expression. But I may also be saying that we shouldn’t all be “cultural producers”, but instead, “artists.”

  4. Hamad Sindhi

    I agree with your main point that the problem is not the tool (law) but who uses it (capitalism). And your question about how to make sure artists get paid is a valid one. But I really wonder if artists (and I’m using a broad definition of ‘artist’ here as culture-producers) are getting paid in the current system even. From what I’ve read at least about writers (not talking about the top 2%, but the 90% of writers who make close to nothing on their art), you still need a day job to make ends meet. So, capitalism is obviously not working for the artists – and I think you’d probably agree; capitalism only works for the capitalists, those who exploit the artists. And though you are right that the readings focused too much on the art and not on the artists, and weren’t critical enough of the capitalist structure, I think they are still a good start. I am all for targeting the tools (hence, am a proponent of gun control), because there are certain tools that make the user super-efficient at accomplishing his goals – and copyright laws make it very efficient to exploit both art and the artists.

    I also wonder about how we conceive of who an ‘artist’ is or can be. I think it may be helpful to distinguish between people who make art as a profession (and therefore need rules, norms and protections), and people who engage in and (re)produce culture. I think that capitalist cultural-production has heavily controlled culture that was open and accessible to all, created the ‘professional artists’ as an exploitable (and restricted – not everyone can be an artist) category and really ingrained the notion of a bifurcated cultural experience between those who produce art and those who consume it. So, my point here is – while thinking of how artists should be compensated for their work, lets not reproduce the binary that industrial-capitalism has pushed on us.

  5. Pamela Thielman (she/her)

    I think that you have made some really important points here. I get very uncomfortable in discussions of free culture that unilaterally assert that all culture should always be free, period (like what is being described in the Benenson essay, though that is really not a commercial situation). As the child of an artist, the wife of an artist, and an artist myself in my non-academic professional life I feel like I am extremely aware of the economics aspects of creativity.

    You raise real questions: if we want to make art do we have to decide between an exhausting double life and a marginalized existence? What would a cultural economy that doesn’t force this kind of choice look like? I think you’re right that these are things that have not only to do with instruments (copyright law) but with people and how they are using them. If we make cultural products free AND create financial stability for artists does this entail some kind of subsidy? If so, then we get into all kinds of issues with censorship and/or undue influence on the work from outside parties. If not, then what? I don’t know that I’ve heard of viable alternatives.

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