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Freedom Of Expression ®: Overzealous Copyright Bozos And Other Enemies Of Creativity
by Kembrew Mcleod
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What if George W. Bush's much ballyhooed "ownership society" were taken to an illogical extreme, so that each of us owned a phrase or a sound or a gesture that would generate a little income every time it was used? Of course, we could trademark all the catchphrases we like (as, for example, Donald Trump has with The Apprentice's tagline "You're fired"), but most of us are in no position to collect. Corporate entities, however, are capable and quite willing to claim ownership of what until recently would have seemed to be public property, to dangerous ends, argues Kembrew McLeod. The University of Iowa communications professor explores the clash between free speech and intellectual property law in this absorbing and unsettling expose. McLeod eschews the role of the detached observer in favor of a more indignant and even angry voice; indeed, he's trademarked the phrase "freedom of expression" to hammer home his point and makes no secret of his contempt for "overzealous copyright bozos" and their ilk. Trends in intellectual property rights and the free exchange of ideas are serious business, however. The author supports his concerns with an array of examples, from the ridiculous (Fox's attempt to punish comic Al Franken for his satirical use of their "fair and balanced" motto) to the alarming (corporate agribusiness's development of "terminator technology" that makes patented seeds sterile after one planting).
McLeod, who's written extensively elsewhere about music, uses pop culture as a jumping-off point, but deftly ties together the legal threads that hamstring authors, recording artists, and filmmakers with their working scientific and agricultural counterparts. Indeed, McLeod deserves special kudos for demonstrating that the same forces that can be used to crush the seeds of creativity can also be used to literally smother the seeds of life. --Steven Stolder
Praise for Freedom of Expression®
Drop that quotation/sample/collage, sir! An enlightening, amusing, and frightening look at how the growth of intellectual property law is making us all less free to say and think what we want.
In 1998 university professor and professional art prankster Kembrew McLeod trademarked the phrase "freedom of expression" as a joke, an amusing if dark way to comment on how intellectual property law is increasingly being used to fence off the culture and restrict the way we're allowed to express ideas. But what's happened in recent years to intellectual property law is no joke and has had repercussions on our culture and our everyday lives. The trend toward privatization of—melodies, genes, public space, the English language—means an inevitable clash of economic values against the value of free speech, creativity, and shared resources. Our irreplaceable cultural commons is being sectioned up and sold off to the highest bidders and the most aggressive litigators.
In Freedom of Expression®, Kembrew McLeod gathers topics as diverse as hip-hop music and digital sampling, the patenting of seeds and human genes, folk and blues music, visual collage art, electronic voting, the Internet and computer software. In doing so, he connects this rapidly accelerating push to pin down everything as a piece of private property to its effects on music, art and science.
In much the same way Eric Schlosser's Fast Food Nation tied together disparate topics to paint an alarming picture of the food industry, and written in a witty style that brings to mind media pranksters like Al Franken, Ken Kesey, and Abbie Hoffman, Freedom of Expression® uses intellectual property law as the focal point to show how economic concerns are seriously eroding creativity and free speech. It’s later than we know.
From the Inside Flap
In 1998, university professor and professional prankster Kembrew McLeod trademarked the phrase "freedom of expression" as a joke, an amusing if dark way to comment on how intellectual property law is increasingly being used to fence off the culture and restrict the way we're allowed to express ideas. But what's happened in recent years to intellectual property law is no joke and has had repercussions on our culture and our everyday lives. The trend toward privatization of everything—melodies, genes, public space, English language—means an inevitable clash of economic values against the value of free speech, creativity, and shared resources. In Freedom of Expression®, Kembrew McLeod covers topics as diverse as hip-hop music and digital sampling, the patenting of seeds and human genes, folk and blues music, visual collage art, electronic voting, the Internet, and computer software. In doing so, he connects this rapidly accelerating push to pin down everything as a piece of private property to its effects on music, art, and science.
About the Author
A journalist, activist, artist, and professor in the Department of Communication Studies at the University of Iowa, KEMBREW McLEOD is the author of Owning Culture: Authorship, Ownership, and Intellectual Property Law (Peter Lang, 2001) and has written music criticism for Rolling Stone, the Village Voice, Spin, and Mojo. He is also the coproducer of a 2001 documentary on the music industry, Money for Nothing: Behind the Business of Pop Music, and a documentary on intellectual property law, Copyright Criminals, which will be completed in 2005.
Excerpt. © Reprinted by permission. All rights reserved.
THIS GENE IS YOUR GENE
fencing off the folk and genetic commons
This gene is your gene," sang Francis Collins, playfully reworking an old Woody Guthrie song, with electric guitar in hand. "This gene is my gene," he continued, backed up by the lumbering roar of a middle-aged rock band. This was no ordinary club gig; he was singing at a post-press conference party for scientists. Collins was the man who headed up the Human Genome Project (HGP), funded by the National Institutes of Health, and he was trying to make an ethical and political point. Since the mid-1990s, Collins's HGP had raced against a private effort to map the human genome in order to make our genetic information freely accessible, not privately owned and patented by a handful of corporations. Any scientist could examine HGP's genome map for free--unlike the Celera Genomics' privately owned draft, which was published with strings attached.(1) Over the din, Collins chided his competitors in song by genetically modifying Guthrie's lyrics:
This draft is your draft, this draft is my draft,
And it's a free draft, no charge to see draft.
It's our instruction book, so come on, have a look,
This draft was made for you and me.
Dr. Francis Collins reworked "This Land Is Your Land" to argue that genetic information should be freely available to the scientific community. However, his use of that Woody Guthrie song was sadly ironic, on multiple levels. "This Land Is Your Land" is a song written by an unabashed socialist as a paean to communal property: "This land was made for you and me." Another key lyric goes, "A sign was painted 'Private Property' but on the backside it didn't say nothin'." The folk-song tradition from which Guthrie emerged valued the open borrowing of lyrics and melodies; culture was meant to be freely created and re-created in a democratic, participatory way.
If this was so, then why was Collins's use of "This Land Is Your Land" painfully ironic? Even though it was written over sixty years ago, the song is, to quote Woody Guthrie himself, still "private property." Guthrie based the melody of "This Land Is Your Land" on the Carter Family's 1928 recording "Little Darlin' Pal of Mine," which in turn was derived from a nineteenth-century gospel song, "Oh, My Loving Brother."(2) This means that, in the twenty-first century, the publishing company that owns the late Guthrie's music can earn money from a song about communal property, which was itself based on a tune that is over a century old. Far more disturbing, Guthrie's publishing company prevents musicians from releasing altered, updated lyrical versions of that song. We won't be hearing Collins's mutated "This Gene Is Your Gene" anytime soon.
What's the connection, you might be wondering, between folk music and genetic research? Although obviously very different endeavors, the practitioners of both used to value the open sharing of information (i.e., melodies or scientific data). In these communities, "texts" were often considered common property, but today this concept has been fundamentally altered by the process of privatization, that is, the belief that shared public resources—sometimes referred to by economists and social scientists as the commons—can be better managed by private industries. And in recent years, there's been a significant erosion of both the cultural commons and the genetic commons, resulting in a shrinking of the public domain. The fact that folk melodies and lyrics are now privately owned rather than shared resources is a depressing example of how our cultural commons is being fenced off. As for the genetic commons, the patenting of human and plant genes is but the furthest logical extension of privatization—taken at times to illogical lengths.
HAPPY BIRTHDAY, SCREW YOU
Like with many things relating to copyright, the story of how Time-Warner's music-publishing division came to own "Happy Birthday to You" is long, convoluted, and absurd. It's also a telling narrative about folk music—how it evolved from a living, breathing part of culture to little more than one musical genre among many, a mere section of a record store. When I first began cobbling together a legal and social history of "Happy Birthday to You," I was surprised to discover that there was virtually nothing published on the subject. Unearthing the song's genealogy was difficult because Warner-Chappell Music, then a subsidiary of TimeWarner, ignored my repeated requests for internal documents that might shed light on the song's origins. Finally, Don Biederman—an executive vice president at the company—informed me in a faxed letter that the company does in fact maintain "files concerning HBTY in various departments of our company." However, he could not provide me with any information on "Happy Birthday to You" because "we regard this information as proprietary and confidential."
Despite the "owner's" lack of cooperation, I can now tell the story—after nearly ten years of digging through journals, books, music-trade papers, old master's theses, and other dusty sources. It goes like this: Schoolteacher Mildred J. Hill and her sister Patty published the song's melody in 1893 in their book Song Stories for the Kindergarten, calling it "Good Morning to All." However, the Hill sisters didn't compose the melody all on their own. There were numerous popular nineteenth-century songs that were substantially similar, including Horace Waters's "Happy Greetings to All," published in 1858. The Hill sisters' tune is nearly identical to other songs, such as "Good Night to You All," also from 1858; "A Happy New Year to All," from 1875; and "A Happy Greeting to All," published 1885. This commonality clearly suggests a freely borrowed melody (and title, and lyrics) that had been used and reworked throughout the century. Children liked the Hill sisters' song so much that they began singing it at birthday parties, changing the words to "Happy Birthday to You" in a spontaneous form of lyrical parody that's common in folk music.(3)
It wasn't until 1935 that the Hill sisters finally got around to registering a copyright on the melody and the new birthday lyrics, claiming both as their own. The years rolled on, and so did the lawsuits, of which there were many. Then, in 1988, Birch Tree Group, Ltd., sold "Happy Birthday to You" and its other assets to Warner Communications (which begat TimeWarner, which will one day give birth to OmniCorp, or a similarly named entity). The owners of Birch Tree told the Chicago Tribune that it was too time-consuming for a smaller company to monitor the usage of "Happy Birthday to You" and that "a major music firm could better protect the copyright during its final 22 years."(4) It turns out TimeWarner hit the jackpot when the U.S. Congress added twenty more years of protection to existing copyrights. As a result, "Happy Birthday to You" won't go into the public domain until 2030.
How better to protect an investment than to aggressively police the song's use? The current owner does this job quite well, much like the song's previous stewards. One person who was very well acquainted with royalty payments and copyright law was Irving Berlin, the famous American popular-music composer. His 1934 Broadway play As Thousands Cheer included a scene where actors sang the litigation-prone birthday song. Although the lyrics of "Happy Birthday to You" had not yet been copyrighted—that wouldn't happen for another year—the Hill sisters' publishing firm nevertheless claimed that his use of the song was an infringement on the melody of "Good Morning to You." The illicit singing was in all probability very innocent, but as was the case with later lawsuits against other infringers, they didn't take pity on Berlin.
Postal Telegraph, a company that began using "Happy Birthday to You" for singing telegrams in 1938, found itself treading in copyright-infringement waters, as did Western Union. Western Union career man M. J. Rivise remembers, "From 1938 to 1942, most of our singing telegrams were birthday greetings, and 'Happy Birthday to You' was the cake-taker." Postal Telegraph apparently received permission from the American Society of Composers, Authors, and Publishers (ASCAP)--the organization that collects royalties for song-publishing companies—to use "Happy Birthday to You" without paying royalties. By 1941, ASCAP changed its mind and hiked the royalty rates. Western Union and Postal Telegraph refused to pay, commissioning birthday songs based on the public-domain melodies of "Yankee Doodle" and "Mary Had a Little Lamb." The public thought they were pretty lame, as you might imagine, so by 1950, the singing of "Happy Birthday to You" resumed, with the licensing problem sorted out. It's likely that singing telegrams were instrumental in popularizing and ritualizing the birthday song throughout the United States.(5)
Roy Harris, a twentieth-century composer of classical music, got into trouble when he used part of the song in his "Symphonic Dedication," which honored the birthday of another American composer, Howard Hanson. Variety reported, "Keeping the occasion in mind, Harris brought his composition to a climax with a modern treatment of 'Happy Birthday.' After Harris' piece had been introduced by the Boston Symphony he was compelled by the copyright owners to delete the 'Happy Birthday' passage from his score." P.D.Q. Bach, the "Weird Al" Yankovic of the classical-music world, avoided using any strains of "Happy Birthday to You" in a birthday ode to his father because he ...
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