Lawrence Lessig argues that the United States has hobbled its tradition of “free culture” by letting copyright protections overgrow their original, limited reach. At the turn of the twentieth century, copyright protected works that were expressly registered with the United States government, and those protections only lasted about thirty years. The rise of the corporatized culture industry in the twentieth century created legal pressure to expand copyright protections. Today we cannot presume any work created after January 1, 1923 belongs to the public domain.
Why is this a problem? For one thing, a robust and relevant public domain ensures creators have the freedom to make use of our shared cultural landscape. When artists look back a generation at the artists that laid the recent groundwork for their own creative work, they take inspiration legal or not. Salamishah Tillet makes this point clear when she points to the significant—and productive—impact Nina Simone has had on hip hop artists such as Cassidy, Common, Lauryn Hill, Talib Kweli, Kanye West, and just recently Jay-Z. While those successful artists have managed to sample Simone’s rich catalog in their own work, that catalog remains protected by copyright and so unavailable to the vast majority of artists who have not had commercial success.
Only a century ago, things were different. Artists had access to works that blazed new directions in cultural production. In some cases, accesses to cultural works correlates to other kinds of access, including access to political memory that seems now more urgent than ever. As Tillet explains, when hip hop artists sample Nina Simone, they access a kind of “sonic black radicalism” otherwise unavailable in today’s mainstream media landscape. Simone’s innovative synthesis of musical categories, explains Tillet, was “animated by the radical politics of the 1960s.” In her own day Simone “created a new musical vision of blackness and model of sonic experimentation” that “a new generation of hip-hop artists and listeners” sample, remix, emulate, and—most importantly—root in contemporary culture.
The diminutive status of our contemporary public domain threatens to limit the influence a new generation of hip-hop artists might have going forward. This seems especially counter-intuitive given the history of hip hop as an artistic form that stands on the shoulders of giants. Since the earliest turntablists got together with MCs, hip-hop has taken twentieth-century recording artists to unforeseen places (think Jay-Z sampling Annie), and unforeseeable audiences (think M.I.A sampling Jimmy Jimmy Ajaa Ajaa). Sampling, remixing, and reinventing popular culture has only gotten easier, given the various mechanisms that digital technologies make readily accessible to billions of people worldwide. Yet, at the very moment when it becomes possible to turn Sesame Street clips into a Tribe Called Quest music video, we find a new regime of copyright protections limiting fair use.
What a shame that we can’t know for sure if the cosmic soul-marriage of Busta Rhymes and Count Von Count will still be online tomorrow. There’s every chance that some corporate lawyer will send a take down notice, robbing us all of exactly the sort of creativity and joy that digital technology has enabled. Considering all the pain and misery it has wrought, can’t we at least have a Very Muppet Scenario? Here we go, yo.