Arrested Pulse

This morning I pulled the blinds, locked the door, and engaged in an act that can only be done in the secrecy of one’s home. I turned on my electric piano, plugged in my earphones so no one nearby could hear what I was about to do, and then — after a deep breath — played this five-note note progression: B flat – D flat – G – D flat – A flat. I immediately recognized what I had played: Intel’s distinctive jingle that is aired at the end of their television commercials when their brand name flashes on the screen. I played it again, and again, and fortunately lost my interest after a while. Had I not lost interest — had this little five-note tune enraptured me enough to use it in one of my own songs (as I have, without seeking out any kind of permission, segments of Beethoven’s “Fur Elise” and Vivaldi’s “Four Seasons”) — I’d be on the brink of committing a felony. This little five-tone audio progression is one of Intel’s most carefully guarded trademark.

I’ve never seriously thought much of intellectual property rights, copyright laws, and trademarks until this segment of this class. My Masters was in 20th century American literature and for the past two decades I’ve been teaching that, plus composition and ESL and a few other courses related to the academic discipline of “English.” But I’m very seriously thinking about them now, as well as the broader implications that have for our culture. Because of this one lecture, I will never take for granted that a Hershey’s Kiss is just that; it’s a “distinctive shape,” which is trademarked; and the cross-patterned blue-lined box from Tiffany’s—beautiful, and trademarked; and the architectural design of McDonald’s Golden Arches (which I associated with indigestion anyway)—that not just what it “looks like,” that what it is, and it’s trademarked.

Kembrew McLeod’s Freedom of Expression® and the documentary Copyright Criminals point to just how enormously powerful corporations have become in their mission to colonize what used to be known as common or public space; everything I touch, and see or hear or smell or taste, seems to be in some way or another “protected” by intellectual property laws. And where do I — as a body with a personality and subjectivity — fit within this vast terrain that is owned by forces I can’t see and don’t know about? In the old days it was easy to define private property because that property was primarily physical; it could be “fenced in.” In our design oriented market of visual culture, however, property is less easy to define; hence trademarks were invented to serve as “source identification” of allegedly “distinctive” designs and mark the boundaries between the public and the increasingly privatized sphere of corporate consumerism.

This shrinkage of the public domain affects me not only as an American consumer and private citizen, but also as an academic. Libraries used to own textual resources; now, thanks to the so-called revolution in digital technology, they buy access to them. Control of texts is shifting away from libraries and relocating itself in companies who control databases. This isn't helped by the current economic crisis — which I think could likely be a history-making development — which is forcing colleges and universities to make budget-cuts galore. Libraries will need to make deep cuts in their expenditures; if they cancel their subscription to just one database, researchers could risk losing significant access to information. Concentrating lots of information in the hands of a few companies may be more “convenient,” but if those companies charge exorbitant prices for access which libraries can no longer afford, researchers risk losing their ability to conduct research.

My dismay is mixed with some hope. The open-access movement, and sites like Creative Commons, act as wrenches thrown into the copyright machine. touched on ways that we can all resist the monopoly of corporations on segments of public space. Trademarks are threatened when a trademarked entity loses its distinctiveness. For example, Aspirin® became aspirin from common usage; and the more we use “google” as a verb, the more threatened (in Orozco’s view) Google® is as a label. McLeod touches on this in his book as well, noting how Xerox® has made special efforts to remind companies that making copies is not necessarily identical to “xeroxing” them. Perhaps I can chip away at the monolith by openly declaring that I plan to “acco” a small stack of papers rather than “put them in a three-whole punch.” And maybe I’ll start to polaroid the landscape rather than photograph it.

My Identity Crisis
I’d like to address Kembrew McLeod’s book by recalling an identity crisis I experience a few years back. Several years back, I hired a guy who was a digital musical composer to help me record some of my songs. This guy played the trumpet, but he could compose symphonies using the Pro-Tools® software program, and he certainly spiced up some my little ditties. Anyway, here was our general protocol: I’d play and record the music to my song on my portable electric keyboard at home. Later I’d bring the keyboard into his studio and he’d midi the data onto this computer, where he could then work with it by adding reverb, shifting the balance, and mixing in other instruments or sound effects.

One afternoon I showed up at his studio for a recording session and he told me, with an excited smile, that he “recomposed” the piano accompaniment for one of my favorite songs, which I had written, played, and recorded the week before. The version, which he had composed using Pro-Tools® and no “real” piano, was slower, crisper, and arpeggiated the chords in a different manner.

I listened to his recomposition of my song and loved it. “However,” I said, “there’s one problem.” “What’s that?” he asked, puzzled. “It’s not me! It’s Pro-Tools, not Kevin Cassell!” “No, no, no,” he insisted: “This is your song. The chord-progression remains intact.” I protested still: “But I’m not playing it!” He looked at me as if he were staring a recalcitrant old fogy in the face and said: “Kevin, you’ve got to update your thinking on what music is. It’s not like that anymore.”

It’s not like that anymore. I remembered this while watching a preview to Copyright Criminals recently and encountering McLeod’s discussion, in his book, of how sampling, mixing, and digital composition programs (like Pro-Tools®) is serving to deconstruct — a la Jacques Derrida — our notions of what constitutes (musical) texts and, hence, hammer the last nail into the coffin of The Author. Copyright laws were originally created, he writes, to “balance” products put out so that both the creator/author and the public “benefited.”

But the market economy has changed how these laws are now enforced; there is an attempt to allow the owner (which is, these days, the label or the publishing company more than it is the recording artist or author) to “control the contexts in which their work is used” (109). This legal principle derives from the notion, which I bought into, that an identity is formed between the originating source (author) and the product, and copyright laws are used to put down any threats to that identity. We see this especially in the case of Gilbert Sullivan (in both the movie and book), the 70s crooner whose song “Alone Again, Naturally” was “taken out of context” when it was “sampled,” and copyright lawyers descended like vultures to pick apart what remained of the fallen law-breaker. Sullivan apparently saw the song as a part of him, and vice versa; it was a manifestation of his identity — one which was disarticulated by the sampling effect, an apparent source of an identity crisis (as well as a financial no-go) for Sullivan just as it was for me when my producer “recomposed my work.”

Anyway, I actually went with my production manager's “new and improved” version of my song, and I’m glad I did. But to be honest, for a long while I had trouble thinking of it as “my song” because of the fact that I did not actually play the main instrument, the piano. So my identity crisis remained — until one day I decided to restore the relationship I had with this song by (shhh!) copying his version and making it my own; that is, I simply relearned the piano part the way he “played” it on the recording, and — Shazam! — my identity was restored! It was my song again. I had reclaimed ownership of it.

I’m telling you all this because it demonstrates the extent to which the author-owner-copyright conjunction as myth has permeated our culture. Today, if someone wants to sample my music, recompose it, distort it, whatever, I’ll (hopefully) be like: Great! Glad it affected you enough—either positively or negatively—to make you even want to sample it! Here, take it; no compensation necessarily!

Why would I (hopefully) react in such an open-minded, selfless manner? Because I have renewed respect for the public domain and an urgent desire to preserve what precious little of it remains. I have, in other words, a Woody-Guthrie attitude toward music, including my own. That’s in part due to my awareness of Emmanuel Epstein’s observation on the “logic of privatization” which has transformed our legal and philosophical assumptions about human life, making it now a product (qtd in McLeod, 37). This shrinkage of the public domain — the fundamental warning of McLeod’s book — isn’t just a threat to the democratic process; it’s a threat to our ability to sustain ourselves as a culture, a civilization, even a species. We see this most explicitly in his discussion of the move by (predominantly) US corporations to patent plants and genetically-altered seeds, a move that has huge ramifications for biodiversity and the food chain.

But hope is out there. Media prankstership — a noble tradition that includes Benjamin Franklin and the Dadaists — is an example of intellectual property and copyright laws can be destabilized and, hence, the absurdity of their intentions exposed. This kind of détournement is a freedom of expression® that operating as a politically subversive maneuver. And for those of us who aren’t pranksters or activists, there’s a way we, too, can more quietly resist. We don’t need new legislation to defend fair use, McLeod argues; our best defense against the forces that have it in their cross-hairs is simply to use it. I agree. While we do need to press (as McLeod does) for better compulsory licensing to ensure that owners can’t price competitors out of the market — something the genetic engineering firm Monsanto has tried to do, with huge implications for us all — the best strategy we have now is to use what little freedom remains.