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Variations on an American Theme

April 22, 2010

It has been said that Jazz is a uniquely American music form because it represents rebellion against established traditions and entrenched institutions in favor of new expressions of individuality and creativity. At least, that definition fits with the historic, iconoclastic American geist that promoted the sanctity of the individual, valued the present and future over the past, the culture that enshrined the bold and rewarded those who pushed the envelope to spite the establishment’s vested interests. Even though Jazz grew up in an era now associated with the Gatsby-esque robber barons (and vice versa), Jazz takes more than just the individual. As Wikipedia (the Jazz of reference sources if there ever was one) puts it, Jazz “is the product of egalitarian creativity, interaction and collaboration, placing equal value on the contributions of composer and performer, ‘adroitly weigh[ing] the respective claims of the composer and the improviser.'” So, one might say Jazz is marked by the present artists’ choices in variation on a theme, that their performance and their particular mode of interpretation is what is to be valued, and that the theme itself is the vehicle that allows an artist to actually perform.

Throughout history, variation on themes has been a simple fact of artistic creation. You might already be familiar with the excellent “Pachelbel Rant,” that sardonically bemoans the omnipresence of a single set of song chords.

Or maybe you’ve seen the newest variation on the same rant, but which points out a similar thematic consistency:

The point of these videos and Jazz itself is that core creative works cannot be subject to excessive protection because there is simply far too much creative potential in almost any work for subsequent individuality and creativity to make that creativity wholly new once again. One would think that an American policy toward creativity should resemble this Jazz-like method of taking a core theme or set of ideas, and allow an artist to make those ideas personal through their own individual method of interpretation. The idea/expression dichotomy in Copyright was supposed to allow just that, but the jurisprudential definition of “idea” has been pretty narrow in its historical application. Similarly, the “limited Times” aspect of Copyright has gone out the window through Mickey Mouse Copyright Extension Acts.

Jazz seems to define the logic that underlay the mechanical licensing scheme for cover songs, whereby the recording artist pays a standard royalty to the original author/copyright holder through an organization such as the Harry Fox Agency, and is safe under copyright law even if they do not have any permission from the original author. But today, the American mentality that once vaunted the exploration of new frontiers without regard to propriety or established norms has matured into that cozy and comfortable position of protecting the old and established classes against young and impetuous upstarts that the British Empire saw before its downfall.

Whereas the old industrial media relied on a “first capture” rule for sorts for creativity, that gave the individual a monopoly and control over those works, more empirical and/or anecdotal signs are emerging that the new media will rely on Jazz-like collaboration and interpretation of old themes, but to the creation of entirely new intellectual property (even in the world of patents, significantly).

For example, Star Wars: Uncut is a project where the entirety of A New Hope has been cut into 15-second clips, and any aspiring film maker can claim that clip and produce a lo-fi version of that scene. The project will then compile the clips and recreate the movie in its entirety, and from the preview below, it seems undeniable that there is some real creativity that should have a legal mechanism in place to ensure its safety.

On an even more basic level, while it might seem like pure copyright infringement to post various protected works on your own site without modification, there can certainly be worthwhile creativity in one’s mere choice of images to bring together. For example, “25 Examples of Unintentional Porn” made me look at a few of these images in a new light.

I’m not saying Copyright policy should allow totally free and unfettered use of all copyrighted works. But how about something that allows for some mental Jazz? Something American?

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