Romantic Remixers: Hidden Tropes of Romantic Authorship in Creators’ Attitudes about Reuse

The Romantic conceptualization of authorship, in copyright debates, has a powerful role. The Romantic notion postulates that authors create from a well of internal inspiration, free from the influence of others (Woodmansee & Jaszi, 1994; Kwall, 2006). As we note further below, it is this notion that is frequently used to justify copyright owners’ stakeholder arguments for stronger copyright protection and enforcement, and for expanding constraints on how culture is circulated and reconstituted.

The romantic author is someone of enormous creativity and imagination. He – because the author was historically construed as a ‘he’ – is unique and divinely gifted (Silbey, 2008, p. 343). He receives inspiration as a proverbial ‘strike of lightning’; the source of his creativity is transcendental: “man’s capacity for artistic creation mirrors or imitates God’s creative capacity” (Kwall, 2006, pp. 1952–53). Silbey has observed that “the co-existence of these dual qualities in the author, the human and the divine, functions as an ideology of uniqueness to underwrite the authority that authorship garners” (Silbey, 2008, p. 343).

That art is seen as spiritual as much as material accounts for the frequent disconnect between art and the market. The image of the starving artist in the garret is pertinent here – artists must endure poverty because the market is slow at adapting to their genius (Marshall, 2002, p. 2). Thus, hardships experienced by creators, particularly financial hardships, are readily explained by the Romantic author trope – they are directly connected to the originality displayed by the artist. This, in turn, leads to phrases frequently appearing in discourses surrounding creative practice – of artists waiting for much-deserved recognition; of the glorious struggle of art; of creators finally receiving their due.

The Romantic notion of the author, on which so much of rightsholders’ public campaigns are based, has been criticized by sociological, psychological and legal scholars over the last several decades as being at odds with realities of cultural creation (Woodmansee & Jaszi, 1994; Coombe, 1998; Csikszentmihalyi, 1996; Bently, 1994; Lessig, 2004; McLeod, 2007; Silbey, 2008). Critical legal scholarship has drawn attention to the problems with the Romantic author trope, by examining more closely how and why people create. In contrast to the ideal of the divinely inspired ‘author-genius’ whose work is utterly unique, this scholarship has highlighted that authors routinely seek inspiration from the creative works around them and draw on these works when creating their own (Cohen, 2007, 2011; Kwall, 2005; Fromer, 2010; Chon, 2012). The literature reveals the connection between authors and users by demonstrating that they act in notably similar ways when they experience, experiment with and produce creative works (Tushnet, 2009; Silbey, 2011; Suzor, 2014). Cohen calls this person ‘the situated creator’ – someone who is both author and user, and who draws on the world around them in their creations (Cohen, 2007).

The problems with Romantic authorship are closely tied to problems with the notion of originality. Rose describes the concept of ‘originality’, which underlies the grant of copyright, as “at best a problematic term” (Rose, 1988, p. 78), arguing that “authors do not really create in any literal sense, but rather produce texts through complex processes of appropriation and transformation” (Rose, 1993, p. 8). He observes, “What current literary thought emphasizes is that texts permeate and enable each other, and from this point of view the notion of distinct boundaries between texts, a notion crucial to the operation of the modern system of literary property, becomes difficult to sustain” (Rose, 1988, p. 78). Foucault famously argued that ‘the author’ is really a construct – “these aspects of an individual which we designate as making him an author are only a projection… of the operations that we force texts to undergo [and] the connections that we make” (Foucault, 1979).

But as others have noted, “the cult of the romantic author […] runs deep” (Silbey, 2008, p. 343) and “has proven both durable and adaptable” (Saint-Amour, 2003, p. 6). Romantic conceptions of creative originality, uniqueness, and individuality flourished in the mass media era, promoted as they were by large media companies, and continue in an Internet era (Chon, 2012). In fact, WIRED magazine, the standard-bearer of digital innovation culture, notoriously uses this trope (Streeter, 2010, p. 170). Its pervasiveness can also be seen in legal decisions, both in Australia and the U.S. (see, e.g., Rogers v. Koons, 960 F.2d 301 (2d Cir. 1992); EMI Songs Australia Pty Limited v Larrikin Music Publishing Pty Limited [2011] FCAFC 47). The Romantic author is “an intransigent shape-shifter” (Chon, 2012), remarkably adaptive to new technologies and contexts.

Some scholars have argued that the ideology of the Romantic author is, in fact, a result of a cultural history that has been conditioned by “a consolidating and expanding copyright regime” (McCutcheon, 2012, p. 91). The construction of the Romantic author – and understandings of historical authors’ inherent originality – is therefore both highly selective and retroactive, in line with the growing maximalism of copyright law over time (McCutcheon, 2012; Macfarlane, 2007). McCutcheon has observed that the trope of Romantic authorship “has become a standard, disingenuous justification for corporate lobbying and litigation against both the expansion of appropriation art forms (including user-generated content) and the exercise of users’ rights like fair dealing to protect and promote such art forms” (McCutcheon, 2012, p. 73). The figure of the Romantic author is the “rhetorical weapon of choice” for copyright maximalist interests, which are generally corporate and not individual in nature (McCutcheon, 2012, p. 72–73).

One does not have to look far to find examples of large-scale copyright industries adopting the language of Romantic authorship. The Recording Industry Association of America (RIAA) and the Motion Picture Association of America (MPAA) are two of the largest pro-copyright lobbying consortia in existence today. Both count global corporations including Warner Brothers, Sony, and Universal among their members. The interests of the RIAA and MPAA are undoubtedly industry rather than individual, but their mission statements and public documents are steeped in allusions to individual originality. The RIAA website states: “Investing in great artists and protecting their creative freedom is at the heart of our work” (RIAA, 2018). Similarly, the MPAA claims to represent “a community of storytellers at the nexus of innovation, imagination and creativity” (MPAA, 2018). Recently, in advocating for a retrospective extension of copyright for pre-1972 music recordings, the RIAA declared that it was seeking to “correct injustice and ensure that music creators who made these timeless recordings finally get their due” (RIAA, 2018). As Lee Marshall has argued, if the content industries want to advance law reform that is against the public interest (and, he contends, “copyright extensions almost undoubtedly are”), then they must have a compelling rationale to do so. “If copyright is understood as a homage to artists, then if there is a conflict of interests in copyright, it is assumed that the rights of artists (and by extension, the rights of the industry who nurture artists) take precedence over the rights of the public” (Marshall, 2002, p. 6).

But where does this leave those individual artists and creators? More specifically, what relationship do those artists who consciously adopt and repurpose the works of others have with copyright’s trope of ‘originality’? Some scholars and advocates (e.g. Bollier, 2008; Benkler, 2006; McLeod & DiCola, 2011; Vaidhyanathan, 2001; Schloss, 2004; Demers, 2006) have postulated that participants in remix culture, also referred to as configurable (Sinnreich, 2010), spreadable (Jenkins et al, 2013), and recombinant culture, manifest creative attitudes and actions that defy the strictures of copyright policy. Many more creators, however, employ others’ work perforce—for instance, documentarians, who constantly quote a copyrighted world; nonfiction book authors, who cite each other, quote sources, and refer to a cultural context full of copyrighted work; and musicians who inevitably incorporate tropes from the past into the present (see e.g. Arewa, 2006). In this article, we investigate how creators experience and express the tension between the romantic author and recombinant creator, through creators’ own accounts of their creative processes and motivations.

Our research draws on data collected in two copyright jurisdictions – Australia and the United States. The reason for this is largely practical: we, the authors, reside and work in these two jurisdictions respectively. However, we believe that these data may provide a useful snapshot of creative practice in common-law countries with largely identical copyright laws. Australia and the U.S. have harmonized most of their copyright laws in line with World Trade Organization member requirements and the Australia-United States Free Trade Agreement (2004). Where the jurisdictions differ is with respect to lawful exceptions to copyright infringement.

Australia and the United States have copyright policies on exceptions and limitations at opposite ends of the spectrum. We interviewed creators from both jurisdictions, and we found a strong congruence between how creators from both countries spoke about their creative practices. Where things may differ, though, is how creators understand their creative choices in relation to the legal exceptions that operate in their country, and how they are likely to respond to civil society efforts to expand copyright exceptions and limitations or content industry arguments to strengthen copyright monopolies. The presence of the trope of Romantic authorship has strong similarities in both countries, but its impact on law and policy may play out in different ways.

Australia’s exceptions are limited and narrowly defined. The fair dealing exceptions apply only to uses that fall within specific, delineated categories: research or study; criticism or review; parody or satire; reporting the news; for the purposes of judicial proceedings or professional advice; and (newly) for access by persons with a disability. Within these categories, both the Australian legislature and the courts have read down the possible ambit of the exceptions – the fair dealing for research or study exception, for example, includes guidelines in the text of the legislation that a ‘fair’ amount is generally less than 10% of a work (Copyright Act 1968 (Cth) s 40), and successive courts have held that the exceptions must be exercised personally and not on behalf of another (De Garis v Neville Jeffress Pidler Pty Ltd (1990) 37 FCR 99; National Rugby League Investments Pty Ltd v Singtel Optus Pty Ltd (2012) 201 FCR 147). The result is that Australia has one of the strictest copyright regimes in the world, with few exceptions for new creative expression with unlicensed copyrighted material and judicial history tilting toward copyright holders. By contrast, the U.S. fair use doctrine is expansive and judicially favored, allowing unlicensed uses that are ‘fair’ as measured against four factors – most importantly, the impact on the market for the original work, and whether the subsequent use is ‘transformative’ in form, substance or meaning (17 U.S.C. §107).

The U.S.’s fair use doctrine has been a driver of technological evolution, as boldly evidenced by Google search engine, which depends on fair use to justify copying (ALRC, 2013, p. 105). At the same time, publishing interests have decried the destruction of traditional business models, and policies such as European Union copyright directives requiring licensing of media content online have accommodated them (European Commission 2016). Nation states including South Africa, Australia and Brazil have opened inquiries into adopting fair use or making fair dealing more flexible (Nicholson, 2018; ALRC, 2013; Productivity Commission, 2016; Anderson, 2010; Malcolm, 2017); Canada and Singapore, among others, have incorporated more flexible exceptions into their codes (Copyright Modernization Act (S.C. 2012, c. 20); Band & Gerafi, 2013).

But in both Australia and the U.S., the quality of originality is important to a copyright claim. Copyright law generally provides that literary, musical, artistic and dramatic works will not be subject to copyright protection unless they are ‘original’ in the sense that they originate from the author. The bar for this originality in the law is actually quite low. It simply means those works have not been copied, wholesale, from another, or that they do not consist entirely of things that belong in and to the public consciousness – such as pure facts and information. But even copyright’s low bar for originality carries with it an ideological assumption that a work must originate entirely from an author and no one else (copyright uses the term ‘author’ for all kinds of creators). In copyright theory, this has elevated the author to a source of ‘creative genius’ – someone who is able to create something from nothing (Silbey, 2008, p. 342).

Creators in Australia and the U.S. are situated in two very different media environments as well. The U.S. has highly privatized, internationally-dominant media production in which threats to turn to the law to resolve copyright disputes are routinely invoked, even if actual lawsuits are few. Australia has a small creative industries sector, largely supported with government investment committed to fostering Australian content and rarely faced with litigation threats (Cunningham & Turner, 2009). As has been documented elsewhere, the structure of media industries and the threat of litigation can affect whether and how creators are willing to engage in reuse and other forms of appropriation art (Aufderheide, Jaszi, Milosevic, & Bello, 2014). The media environments may also impact on how creators think about creativity and originality.

Given the differences in both legal exceptions to copyright infringement and media environments, we might expect to see more divergence in how U.S. and Australian creators relate to the trope of Romantic authorship. We already know that practice differs dramatically, with American corporations and individuals alike widely employing fair use, while in Australia the option does not exist. In general, however, we found great similarities in the two populations in expressing Romantic attitudes about authorship. We believe that this similarity, which often exist in combination with an expressed frustration about limits to creative practice because of copyright restrictions, demonstrates the strength of underlying ideological framing. Thus, in our discussion below, we have identified where the relevant data have been collected but we present our findings collectively.

Both Australian and U.S. creators generally agreed that work which incorporates within it the work of others could be creative. Only 5% of U.S. professionals in the visual arts, 6% of U.S. documentarians, and 8% of Australian creators believed such work could never be creative. The great majority in all categories thought that such work could sometimes be creative. A minority – 25% of U.S. visual arts professionals, 15% of U.S. documentarians, and 16% of Australians – believed recombinant work was always creative. But in their interview and open-ended survey comments, creators often expressed sentiments that such work might not be as creative as original work.

In open-ended comments in the 2016 U.S. visual arts survey, a participant remarked, “A final artistic project is only original if it contains only the materials from the mind of the artist!” Another said, “Use of another’s work is derivative and not very creative.” Other respondents in the same survey spoke dismissively of “less original and talented individuals” and “lazier, contemporary artists” who reuse the works of others.

Similarly, Australian survey respondents sometimes demonstrated a preference for originality, saying: “My work is almost entirely made from my own imagination”; “I write original plays”; “I create original work”; “all my material is original”; and “I prefer to create my own things.” One respondent noted that being original is “hard” and that, therefore, using other peoples’ material “is not appealing creatively.” The level of struggle was sometimes tied directly to the level of creativity in participants’ minds. In an interview, an Australian filmmaker reflected on remix and originality in film:

An Australian musician told us that he was trying to move away from sampling; his goal was to reach a point where he was using “100 percent my own material.” When we asked why, he hesitated, then replied, “It can be a bit more rewarding if [you’re] using all your own stuff, I guess.” A visual artist told us, “I create my own artwork, which takes more time … but there’s a great sense of achievement in creating original artwork.” Another musician worried that people might not take his work as seriously if he used more samples, even if those samples were used lawfully under a copyright exception. His fear, he said, was that people would think: “oh, you’re just doing that artwork because you can get away with it by not having to clear samples.” Sampling and reuse was, he thought, viewed as easier and therefore less creative, so that his reputation and standing as an artist might be diminished because of the reuse of existing materials.

Our data reflect the pervasive influence of what Woodmansee and Jaszi call ‘the author effect’ (Woodmansee, 1992; Jaszi, 1992). This is the idea that not only do creators strive for Romantic originality in their own work, but that these personal values are then converted into a means of measuring the cultural value of the works of others. Thus, Romantic authorship “functions as a type of cultural arbiter, certifying content with cultural authority” (Chon, 2012, p. 830). We see this when our interviewees discuss the works of others – comparing and contrasting those works with their own, or with the work of creators they admire – where art is deemed better and more authoritative the closer it is perceived to the Romantic idea of originality. We see this, also, in fears and anxieties expressed by interviewees about their own status as artists and how their art and artistic practices are perceived by others.

Creators reported feeling frustrated when they were prevented from sampling or reusing the work of others, whether because they could not rely on an exception, they were denied permission, they never received a response to their request for permission, or they could not afford the license fee. Yet often creators did not experience this frustration as a problem with copyright policy, but as a natural feature of the creative process. They thus reclaimed agency from frustration by perceiving second-best solutions as creative, often heroically creative, acts. In various ways, they expressed the belief that being told ‘no’ actually spurs creativity, by forcing a creator to be more ingenious in devising workarounds.

A U.S. visual artist said that a creator will often do better work when one road is blocked. A documentarian wrote, “I would find another way to tell the story.” An Australian documentary filmmaker said in an interview, “Constraint can be creative.” A respondent to the Australian online survey wrote, about being prevented from using third party material: “I will create or think of something that may not be 100% in line with my original vision, but will still be very good. Anyone who can’t do that – I would question their labelling themselves as creatives. True creatives know that they can handle such situations effortlessly.”

The ability to find workarounds appears tied to a creator’s sense of pride in their professionalism. A professional creator understands the environment in which they operate, including the probable constraints that may be imposed on them. “A professional can always find a way,” said a U.S. documentarian. An Australian author and filmmaker mused about hearing this justification from peers: “We use pride in professionalism as justification for self-censorship.” She continued, “No creator wants to use the word inhibited. There’s a discursive arm wrestle about how the term is being sutured into experience. ‘I’m not being inhibited, I’m being challenged to be more creative.’”

In this way, Romantic authorship works to validate the very legal restraints that make creativity harder and less democratic. Intellectual property laws are premised on the “founding conceit” of original authorial expression, and so narratives of creativity and originality work to legitimate how cultural texts are controlled and circulated (Coombe, 1998). Even creators themselves view artists as somehow separate from the legal and economic structures that control content and determine the conditions under which culture can be accessed and reconstituted. The tendency to view artistic inspiration and practice as transcendent rather than contingent (Foucault, 1979) means that an inability to overcome structural barriers is seen as the creator’s own fault – a failure in creativity and personal grit, and not a problem with a maximalist legal system. The upshot is that recombinant creators who believe this are less likely to challenge – or even question – the legal rules and regulations that impede their work.

The Romantic author trope presents art as spiritual and elevated, rather than material. Creators often sought to characterize financial transactions as moral ones, which aligned with their values in showing respect to other creators through payment in exchange for reuse rights. In this framework, art should be paid for not because it is an item to be traded on the market for commercial gain, but because payment functions as a demonstration of how creativity is valued and appreciated. One Australian creator said, “I would never expect an artist to use my work without paying for it, and I extend that same respect to other artists.” Another Australian creator said, “Respecting other creators’ ownership of their work is important. I should pay for its use, just as others should pay for my work if they want to use it.”

A U.S. visual arts professional commented, “It comes down to this: artists should be paid for their work, even if the use of their work is by another artist.” Documentarians made comments such as: “I’m aware that creative work that is clearly creative work is copyrighted and deserves protection and payment for use”; and “I feel those who hold the copyright are entitled to payment.”

But while Romantic notions of originality and creativity justify license payments for use and reuse, they link that payment to the creative work of individual artists. Both Australian and U.S. creators often expressed outrage at sky-high license fees charged by multinational media companies, precisely because they did not see that this money would return to the artist. Both U.S. and Australian documentary filmmakers were aghast at being forced to license content such as background music playing in bars where they filmed, TV clips locating a moment historically, and public comments by public figures. This was content they saw as being squarely within the public and historical record, and so it did not neatly fit within Romantic constructions of art that morally compel payment. Some Australian musicians expressed outrage about the EMI Songs v Larrikin Music case, in which a current copyright owner (not the original artist) won an infringement claim against the popular music group, Men at Work, for their repurposing of two bars of an old Australian folk song. Men at Work’s song, “Down Under,” is beloved in Australia and seen not just as creative, but as iconic (Rimmer, 2012).

Creators’ alignment of recognition with payment is an implicit contention that in a society where artistic production is historically undervalued, payment functions as a kind of recognition, not just a financial but a reputational benefit. Romantic ideologies of authorship justify the commodification of cultural works (Coombe, 1998) by shifting the focus from money to reputation – it therefore provides a way for creators and the content industries alike to reconcile the crass commercialization of culture with a higher artistic purpose.

In a commercial context, the Romantic author trope produces interesting results. It can help authors to seek payment for their work, by providing justification for why creativity should be valued in the market. But it can also be used to subvert these goals, by stressing the elevated nature of art as distinct from its commodification. Equally, the trope can be used to undermine legal flexibilities that permit creators to reuse content without payment. In Australia, recommendations to introduce fair use provisions into Australia’s Copyright Act were abandoned largely due to the success of an industry campaign that sought to link fair use with free use in public consciousness,

http://freeisnotfair.org/

Creators often linked payment with recognition, but even more, they stressed the value of recognition in itself, an acknowledgement of the unique creative effort involved in making a work and also a validation of one’s identity as a creator. Citation, credit, and attribution were common terms in referring to recognition, and creators sometimes explicitly delinked this from payment.

U.S. visual arts professionals wrote variously: “Credit needs to be given where credit is due. Treat others’ art as you want yours treated;” “I think citation of sources, even for open source materials, should be mandatory even for mash-ups/mixed media;” I always attribute the artist when using images or parts of work;” “I think that artists and scholars should be able to freely use anything in the public domain, but I think it’s important that the authors and artists of any reused work are properly credited. I’m comfortable sharing my own work freely, but I expect to be credited for my ideas. Likewise, I’m careful to credit others in my own work.”

Documentary filmmakers are typically insistent on proper crediting, no matter what their other positions on reuse. As one said, “I believe the owners of copyrighted material, including myself, should be treated fairly.” Interestingly, this is reflected in standards documents that creative communities themselves create. In U.S. codes of best practices in employing fair use, which are designed by creative communities themselves, both documentary and visual arts communities strongly emphasized the importance of crediting—not required at all for employment of fair use—in their recommendations. (International Documentary Association et al., 2005; College Art Association, 2015).

Australian creators similarly expressed strong feelings about crediting. Attribution was considered to be a fundamental part of creative practice and respectful reuse. “I feel it is important that one is acknowledged for the source of one’s work,” said a musician. Another musician mused, “I feel like, for me, crediting of an idea is important and the monetary thing is secondary.” An online content creator expressed a similar view: “It’s not always necessarily about money and distribution. It can be, well, you know, you’ve got to credit me properly, so people know where it’s from. I’m happy with redistributions of my work if there’s a credit in there and I get some growth.”

Australian creators stressed that they credit existing work “at every opportunity”. A filmmaker noted that giving attribution was a “minimum requirement.” Other creators stated, “we always credit the work;” and “I’m very conscious that credit is given where credit is due.”

For the creators we spoke to, full and proper attribution could sometimes address perceived shortcomings of a legal environment where the rules around permitted reuse are fractious and misunderstood, and in a creative economy that consistently undervalues, financially, the work that creators do. More robust recognition of the norms around attribution and respectful reuse within creative communities could serve to empower creators, and perhaps reduce their need to rely on the complicated rhetoric of Romantic authorship to establish their worth. This argument has been made more completely elsewhere (Pappalardo et al, 2017; Pappalardo & Meese, 2019).

These comments came from creators with a strong investment in professional reputation and identity. We compared them to creators with some experience of recombinant creation from the general population, from a 2014 global survey. We found the professionals far more accepting of the originality of recombinant work, but also found similarities in expressions of Romantic notions of authorship.

In the general population, among U.S. respondents who had some experience with recombinant creation, 25% (triple the rate of documentarians and quadruple the rate of visual artists) believed recombinant work was never original. Like professionals, they expressed the attitude that originality was preferable. “Remixes rarely become a great song or sound,” said one respondent. “I find it a bit of a disrespect to the creator of the art (song/video), especially if the intention of the mash up or remix is questionable,” said another. Respondents demonstrated an intuitive connection between getting permission and respect, sometimes justifying the need for that permission with ownership and sometimes with originality. They variously wrote: “Everyone nowadays are using software media or internet, it should always be kept in mind that ownership is a right by every human;” “Mashups are ok as long as there is consent from the owners of videos/music to use that particular file for the mashup;” “I think remixes and mash ups [are] fine if there is a permission [from] the original owner or company;” and “Remixes and mashups should require permission if it is not your original material.” Many comments had to do with crediting as an indication of respect to the original creator: “Remixes and mashups are now trending and very millennial, but also needs to be credited to the original makers;” “There always should be credits to original owner of the songs to be remixed or mashed up;” and “It’s okay to do remix and mash ups as long as it has the permission of the original composer.”