"The Grey Album," a 2004 mash-up by Danger Mouse, is a prime example of the type of copyright dispute Lewis Hyde discusses in his most recent book, "Common as Air." "The Grey Album" combines an a cappella version of rapper Jay-Z's "The Black Album" with instrumentals created from unauthorized samples from The Beatles' LP "The White Album." "The Grey Album" gained notoriety when EMI attempted to halt its distribution, despite the fact that both Jay-Z and Paul McCartney reportedly were fine with the project.
Lewis Hyde is a rare breed of writer—a contemporary poet, philosopher, and essayist in the tradition of Thoreau, Emerson, and Czeslaw Milosz.
Hyde’s first book, The Gift, which attempts to reconcile the value of creative work with the demands of the market economy, is a revered text in the art world and has never been out of print since its publication in 1983. Artists like Michael Chabon, Bill Viola, Margaret Atwood, Jonthan Lethem, and Zadie Smith are fans of Hyde’s work, and David Foster Wallace called Hyde “a national treasure, one of our true superstars of nonfiction.”
Although Hyde received the MacArthur “genius grant” in 1991 and is highly esteemed in literary circles, his name is not as well-known as it should be. But even if you haven’t heard of Hyde before, you have likely encountered his ideas, many of which have been embraced and adapted by mainstream writers like Seth Godin. When Godin says, “Art is a gift. You can sell the souvenir, the canvas, the recording… but the idea itself is free, and the generosity is a critical part of making art,” he is popularizing the philosophical arguments made in Hyde’s work.
"Part of the project of my book," says Hyde, "is to make it clear the degree to which any created thing has roots in the commons. Even a genius like Shakespeare relied on books and myths that were available to him from the past...All creative and inventive minds are not simply solitary." (Lewis Hyde photo courtesy the author)
In the late 1990s, Hyde turned his attention to the subject of intellectual property. The resulting book, Common as Air: Revolution, Art, and Ownership, took almost a decade to complete. His timing was fortuitous, for disputes and lawsuits over image appropriation, music remixes, file sharing, and copyright infringement were on the rise and emerging as the central debate of the digital era.
We now live in an age when agri-giant Monsanto can sue farmers for patent infringement, even if those farmers are desperate to keep Monsanto’s genetically modified seeds out of their fields. One only need to listen to This American Life‘s program on patent trolls or read about Facebook’s recent attempts to trademark the words “book,” “face,” and “wall” to realize that it’s time to reevaluate our country’s intellectual property laws. Corporations may pretend that their litigious actions are motivated by protecting the work of artists, but let’s not kid ourselves. Money is the real bottom line. We have entered a period of “market triumphalism,” a term Hyde uses to describe a pure free-market, private-property ideology.
Clashes over copyright have given rise to the Copy Left or “free culture movement,” a diverse group of artists, intellectuals, lawyers, and activists, who argue that excessive legal restrictions are detrimental to innovation and creativity. In Daniel Smith’s 2008 profile of Lewis Hyde in The New York Times Magazine, Smith cites the case of Emily Dickinson as a prime case of the “corporate ‘land grab’ of information” that has “put a stranglehold on creativity, in increasingly bizarre ways”:
“Dickinson died in 1886, but it was not until 1955 that an ‘official’ volume of her collected works was published, by Harvard University Press. The length of copyright terms has expanded substantially in the last century, and Harvard holds the exclusive right to Dickinson’s poems until 2050 — more than 160 years after they were first written. When the poet Robert Pinsky asked Harvard for permission to include a Dickinson poem in an article that he was writing for Slate about poetic insults, it refused, even for a fee. ‘Their feeling was that once the poem was online, they’d lose control of it,’ Hyde told me…”
"For Hyde, as for many legal and political scholars, the C.T.E.A. (the 'Mickey Mouse Protection Act' to its detractors) represents a blatant abrogation of the purpose of intellectual-property law." (Andy Warhol, "Mickey Mouse," 38 x 38 inches. © The Andy Warhol Foundation for the Visual Arts / Artists Rights Society, New York. Photo courtesy of IKON ltd.)
As Smith’s piece explains, Hyde’s frustrations with such incidents motivated him to become more politically active. In 1994 Hyde supported a unique bill introduced by Democratic senator Christopher Dodd of Connecticut.
“The ‘Arts Endowing the Arts Act’ was an unusual piece of legislation. It proposed auctioning off 20 additional years of copyright protection for creative works and using the proceeds to build a permanent endowment for the arts and humanities. In essence, Dodd wanted to create a gift economy.
The bill failed to gain any traction. The entertainment industry, led by Disney, which faced the imminent expiration of its massively lucrative copyrights on Mickey Mouse, Pluto and Donald Duck, lobbied for the expansion of copyright terms without restriction. In 1998, the Sonny Bono Copyright Term Extension Act passed, adding 20 years to the length of copyright, both pro- and retroactively, and ensuring that thousands of creative works poised to enter the public domain remained in private hands…
For Hyde, as for many legal and political scholars, the C.T.E.A. (the “Mickey Mouse Protection Act” to its detractors) represents a blatant abrogation of the purpose of intellectual-property law…By extending copyright retroactively, Hyde told me, the C.T.E.A. negated the logic of incentive: Mickey Mouse can’t be invented twice…
The C.T.E.A. spurred Hyde to action. He wrote letters to every member of the Senate Judiciary Committee. He published an op-ed, the first of his career. In 1999, with the writer Brendan Gill and Archibald Gillies, then the director of the Andy Warhol Foundation, he started the Creative Capital Foundation, a nonprofit that offers financial support to artists in return for a small percentage of any net profits generated by their work, which the foundation uses to finance other projects. He helped organize a low-fee writers’ room in Boston. And in 2004, he became a fellow at Berkman.
Although Hyde is focused on a new book project now, he remains an essential voice on the subject of intellectual property, art, and the marketplace. I’ve heard Hyde speak on multiple occasions over the years–at the Peterborough Lyceum, at a small gathering at NYU, and also during multiple residencies at The MacDowell Colony. He is sharp, humorous, and erudite–far from a starry-eyed idealist.
It was during Hyde’s most recent residency at MacDowell that the author met Ana Pečar, a video and intermedia artist from Slovenia. Over the course of their stay at the Colony, a series of conversations ensued. The following interview is the serendipitous result of their face-to-face discussions, and a fine example of the types of spontaneous collaborations that can happen when artists of different disciplines have the opportunity to mingle and consider big ideas. As Hyde himself has said, genius needs to “tinker in a collective shop.”
Ana Pecar performing at "Live Performers Meeting" in Rome, Italy, 2011 (Photo courtesy Ana Pecar)
Artist Ana Pecar (Photo courtesy the artist)
There is much here to ponder about free speech, the ownership of ideas, and the corrupting influence of money in politics. Hyde’s interview makes one fact clear: the system as it exists today—one that treats corporations as individuals and forces our congressmen to spend two-thirds of their time raising money—isn’t working.
Hyde suggests that we are asking the wrong questions about intellectual property, the free market, and art. Perhaps it’s time we reframe the debate? After all, aren’t all artists borrowing from their predecessors to a certain extent? Art isn’t created in a vacuum–it’s a dialogue with the larger culture, with the art, music, films, and books that are already in existence. ”Creativity is subtraction,” as Austin Kleon has said.
It is original thinkers like Lewis Hyde—visionary artists with the ability to imagine a different paradigm—who can help us reinvent our broken system.
A special thanks to Lewis and Ana for sharing this interview with Gwarlingo.
Copyrights and Copyduties: Ana Pečar Interviews Writer Lewis Hyde
Ana Pečar: Can you tell us about the area of friction between private property and the scope of things best held in common?
Lewis Hyde: To talk about the tension between private property and common property it might help to think about what we mean by property. One old definition of property is the right to exclude other people, so you know you own your house, because you can exclude people from it, you can keep them out. Or you know you own your car because you can loan it to a friend but you don’t let other people use it.
And in fact in the USA one of our Supreme Court justices said that the hallmark of the constitutionally protected property right is the right to exclude. But this then raises a puzzle, particularly about cultural things, because things like songs and inventions are famously thought of as non-excludable. Once you’ve invented the idea of making bifocal eyeglasses or once you’ve come up with a Pythagorean Theorem, it’s hard to keep people from not knowing it.
Ideas are not only unexcludable but also unrivalrous, which is to say we can share them without anybody loosing them. If I share a bicycle with you, then I don’t have that bicycle, but if I share an idea with you I have an idea and you do too. So ancient people thought that the fruits of human intelligence and imagination were by nature common property.
In the early 1980s, David Byrne & Brian Eno recorded "My Life in the Bush of Ghosts," which was influenced by African-style percussion and Afro-American funk rhythms. It is also notable as one of the first rock albums to make extensive use of the then novel technology of sampling.
Ana: When and in what context did the law start to regulate the public and the private?
Lewis: Particularly with the rise of printing…you begin to have methods of making ideas excludable and rivalrous, even though they aren’t by nature so. The first copyright law came out in the context of publishers enjoying a state-sanctioned monopoly over what appeared in print. It was enacted by the British Parliament in 1710 and named the Statute of Anne.
Things we call “copyright” and “patent” are ways in which the state comes in and takes something which is by nature common and makes it possible to privatize it. A copyright gives you a state-sanctioned monopoly to exclude other people from reproducing your books. I should say that I’m not against this–it is a useful tool of public policy to have these devices– but you really have to think about why you have them and what the ends are to which you dedicate them. And right now we are having serious arguments internationally about this because the balance between private property and common property is out of line.
"I think a lot of American artists struggle with this problem of making ephemeral work versus work that can be commodified. A lot of my friends don’t make sellable work and some of the artists that we’ve been having dinner with here, at MacDowell, do not create work that is clearly one or the other. But you may be right that if you did a study of how the weight falls, maybe Americans are more focused on art they can buy and sell." ("200 One Dollar Bills" by Andy Warhol. Photo by Sang Tan courtesy the AP)
Ana: Why did it fall out of balance?