Abstract: Proponents of the free culture movement argue that contemporary, “over-zealous” copyright laws have an adverse affect on the freedoms of consumers and creators to make use of copyrighted materials. Lessig, McLeod, Vaidhyanathan, Demers, and Coombe, to name but a few, detail instances where creativity and consumer use have been hindered by copyright laws. The “intellectual land-grab” (Boyle, “Politics” 94), instigated by the increasing value of intangibles in the information age, has forced copyright owners to seek maximal protection for copyrighted materials. A propertarian approach seeks to imbue copyrighted materials with the same inalienable rights as real property, yet copyright is not a property right, because “the copyright owner … holds no ordinary chattel” (Dowling v. United States 473 US 207, 216 [1985]). A fundamental difference resides in the exclusivity of use: “If you eat my apple, then I cannot” but “if you “take” my idea, I still have it. If I tell you an idea, you have not deprived me of it. An unavoidable feature of intellectual property is that its consumption is non-rivalrous” (Lessig, Code 131). It is, as James Boyle notes, “different” to real property (Shamans 174). Vaidhyanathan observes, “copyright in the American tradition was not meant to be a “property right” as the public generally understands property. It was originally a narrow federal policy that granted a limited trade monopoly in exchange for universal use and access” (11). This paper explores the ways in which “property talk” has infiltrated copyright discourse and endangered the utility of the law in fostering free and diverse forms of creative expression. The possessiveness and exclusion that accompany “property talk” are difficult to reconcile with the utilitarian foundations of copyright. Transformative uses of copyrighted materials such as mashing, sampling and appropriative art are incompatible with a propertarian approach, subjecting freedom of creativity to arbitary licensing fees that often extend beyond the budget of creators (Collins). “Property talk” risks making transformative works an elitist form of creativity, available only to those with the financial resources necessary to meet the demands for licences. There is a wealth of decisions throughout American and English case law that sustain Vaidhyanathan’s argument (see for example, Donaldson v. Becket 17 Cobbett Parliamentary History, col. 953; Wheaton v. Peters 33 US 591 [1834]; Fox Film Corporation v. Doyal 286 US 123 [1932] ; US v. Paramount Pictures 334 US 131 [1948]; Mazer v. Stein 347 US 201, 219 [1954] ; Twentieth Century Music Corp. v. Aitken 422 U.S. 151 [1975]; Aronson v. Quick Point Pencil Co. 440 US 257 [1979] ; Dowling v. United States 473 US 207 [1985]; Harper & Row, Publishers, Inc. v. Nation Enterprises 471 U.S. 539 [1985]; Luther R. Campbell a.k.a. Luke Skyywalker, et al. v. Acuff-Rose Music, Inc. 510 U.S 569 [1994] .). As Lemley states, however, “Congress, the courts and commentators increasingly treat intellectual property as simply a species of real property rather than as a unique form of legal protection designed to deal with public goods problems” (1-2). Although section 106 of the Copyright Act 1976 grants exclusive rights, sections 107 to 112 provide freedoms beyond the control of the copyright owner, undermining the exclusivity of s.106. Australian law similarly grants exceptions to the exclusive rights granted in section 31. Exclusivity was a principal objective of the eighteenth century Stationers’ argument for a literary property right. Sir William Blackstone, largely responsible for many Anglo-American concepts concerning the construction of property law, defined property in absolutist terms as “that sole and despotic dominion which one man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the whole universe” (2). On the topic of reprints he staunchly argued an author “has clearly a right to dispose of that identical work as he pleases, and any attempt to take it from him, or vary the disposition he has made of it, is an invasion of his right of property” (405-6). Blackstonian copyright advanced an exclusive and perpetual property right. Blackstone’s interpretation of Lockean property theory argued for a copyright that extended beyond the author’s expression and encompassed the very “style” and “sentiments” held therein. (Tonson v. Collins [1760] 96 ER 189.) According to Locke, every Man has a Property in his own Person . . . The Labour of his Body and the Work of his hands, we may say, are properly his. Whatsoever then he removes out of the State that Nature hath provided and left it in, he hath mixed his Labour with, and joyned to it something that is his own, and thereby makes it his Property. (287-8) Blackstone’s inventive interpretation of Locke “analogised ideas, thoughts, and opinions with tangible objects to which title may be taken by occupancy under English common law” (Travis 783). Locke’s labour theory, however, is not easily applied to intangibles because occupancy or use is non-rivalrous. The appropriate extent of an author’s proprietary right in a work led Locke himself to a philosophical impasse (Bowrey 324). Although Blackstonian copyright was suppressed by the House of Lords in the eighteenth century (Donaldson v. Becket [1774] 17 Cobbett Parliamentary History, col. 953) and by the Supreme Court sixty years later (Wheaton v. Peters 33 US 591 [1834] ), it has never wholly vacated copyright discourse. “Property talk” is undesirable in copyright discourse because it implicates totalitarian notions such as exclusion and inalienable private rights of ownership with no room for freedom of creativity or to use copyrighted materials for non-piracy related purposes. The notion that intellectual property is a species of property akin with real property is circulated by media companies seeking greater control over copyrighted materials, but the extent to which “property talk” has been adopted by the courts and scholars is troubling. Lemley (3-5) and Bell speculate whether the term “intellectual property” carries any responsibility for the propertisation of intangibles. A survey of federal court decisions between 1943 and 2003 reveals an exponential increase in the usage of the term. As noted by Samuelson (398) and Cohen (379), within the spheres of industry, culture, law, and politics the word “property” implies a broader scope of rights than those associated with a grant of limited monopoly. Music United claims “unauthorized reproduction and distribution of copyrighted music is JUST AS ILLEGAL AS SHOPLIFTING A CD”. James Brown argues sampling from his records is tantamount to theft: “Anything they take off my record is mine . . . Can I take a button off your shirt and put it on mine? Can I take a toenail off your foot – is that all right with you?” (Miller 1). Equating unauthorised copying with theft seeks to socially demonise activities occurring outside of the permission culture currently being fostered by inventive interpretations of the law. Increasing propagation of copyright as the personal property of the creator and/or copyright owner is instrumental in efforts to secure further legislative or judicial protection: Since 1909, courts and corporations have exploited public concern for rewarding established authors by steadily limiting the rights of readers, consumers, and emerging artists. All along, the author was deployed as a straw man in the debate. The unrewarded authorial genius was used as a rhetorical distraction that appealed to the American romantic individualism. (Vaidhyanathan 11) The “unrewarded authorial genius” was certainly tactically deployed in the eighteenth century in order to generate sympathy in pleas for further protection (Feather 71). Supporting the RIAA, artists including Britney Spears ask “Would you go into a CD store and steal a CD? It’s the same thing – people going into the computers and logging on and stealing our music”. The presence of a notable celebrity claiming file-sharing is equivalent to stealing their personal property is a more publicly acceptable spin on the major labels’ attempts to maintain a monopoly over music distribution. In 1997, Congress enacted the No Electronic Theft Act which extended copyright protection into the digital realm and introduced stricter penalties for electronic reproduction. The use of “theft” in the title clearly aligns the statute with a propertarian portrayal of intangibles. Most movie fans will have witnessed anti-piracy propaganda in the cinema and on DVDs. Analogies between stealing a bag and downloading movies blur fundamental distinctions in the rivalrous/non-rivalrous nature of tangibles and intangibles (Lessig Code, 131). Of critical significance is the infiltration of “property talk” into the courtrooms. In 1990 Judge Frank Easterbrook wrote: Patents give a right to exclude, just as the law of trespass does with real property … Old rhetoric about intellectual property equating to monopoly seemed to have vanished, replaced by a recognition that a right to exclude in intellectual property is no different in principle from the right to exclude in physical property … Except in the rarest case, we should treat intellectual and physical property identically in the law – which is where the broader currents are taking us. (109, 112, 118) Although Easterbrook refers to patents, his endorsement of “property talk” is cause for concern given the similarity with which patents and copyrights have been historically treated (Ou 41). In Grand Upright v. Warner Bros. Judge Kevin Duffy commenced his judgment with the admonishment “Thou shalt not steal”. Similarly, in Jarvis v. A & M Records the court stated “there can be no more brazen stealing of music than digital sampling”. This move towards a propertarian approach is misguided. It runs contrary to the utilitarian principles underpinning copyright ideology and marginalises freedoms protected by the fair use doctrine, hence Justice Blackman’s warning that “interference with copyright does not easily equate with” interference with real property (Dowling v. United States 473 US 207, 216 [1985]). The framing of copyright in terms of real property privileges private monopoly over, and to the detriment of, the public interest in free and diverse creativity as well as freedoms of personal use. It is paramount that when dealing with copyright cases, the courts remain aware that their decisions involve not pure economic regulation, but regulation of expression, and what may count as rational where economic regulation is at issue is not necessarily rational where we focus on expression – in a Nation constitutionally dedicated to the free dissemination of speech, information, learning and culture. (Eldred v. Ashcroft 537 US 186 [2003] [J. Breyer dissenting]). Copyright is the prize in a contest of property vs. policy. As Justice Blackman observed, an infringer invades a statutorily defined province guaranteed to the copyright holder alone. But he does not assume physical control over the copyright; nor does he wholly deprive its owner of its use. While one may colloquially link infringement with some general notion of wrongful appropriation, infringement plainly implicates a more complex set of property interests than does run-of-the-mill theft, conversion, or fraud. (Dowling v. United States 473 US 207, 217-218 [1985] ). Copyright policy places a great deal of control and cultural determinism in the hands of the creative industries. Without balance, oppressive monopolies form on the back of rights granted for the welfare of society in general. If a society wants to be independent and rich in diverse forms of cultural production and free expression, then the courts cannot continue to apply the law from within a propertarian paradigm. The question of whether culture should be determined by control or freedom in the interests of a free society is one that rapidly requires close attention – “it’s no longer a philosophical question but a practical one”. References Bayat, Asef. “Un-Civil Society: The Politics of the ‘Informal People.’” Third World Quarterly 18.1 (1997): 53-72. Bell, T. W. “Author’s Welfare: Copyright as a Statutory Mechanism for Redistributing Rights.” Brooklyn Law Review 69 (2003): 229. Blackstone, W. Commentaries on the Laws of England: Volume II. New York: Garland Publishing, 1978. (Reprint of 1783 edition.) Boyle, J. Shamans, Software, and Spleens: Law and the Construction of the Information Society. Cambridge: Harvard UP, 1996. Boyle, J. “A Politics of Intellectual Property: Environmentalism for the Net?” Duke Law Journal 47 (1997): 87. Bowrey, K. “Who’s Writing Copyright’s History?” European Intellectual Property Review 18.6 (1996): 322. Cohen, J. “Overcoming Property: Does Copyright Trump Privacy?” University of Illinois Journal of Law, Technology & Policy 375 (2002). Collins, S. “Good Copy, Bad Copy.” (2005) M/C Journal 8.3 (2006). http://journal.media-culture.org.au/0507/02-collins.php 〉 . Coombe, R. The Cultural Life of Intellectual Properties. Durham: Duke University Press, 1998. Demers, J. Steal This Music. Athens, Georgia: U of Georgia P, 2006. Easterbrook, F. H. “Intellectual Property Is Still Property.” (1990) Harvard Journal of Law & Public Policy 13 (1990): 108. Feather, J. Publishing, Piracy and Politics: An Historical Study of Copyright in Britain. London: Mansell, 1994. Lemley, M. “Property, Intellectual Property, and Free Riding.” Texas Law Review 83 (2005): 1031. Lessig, L. Code and Other Laws of Cyberspace. New York: Basic Books, 1999. Lessing, L. The Future of Ideas. New York: Random House, 2001. Lessig, L. Free Culture. New York: The Penguin Press, 2004. Locke, J. Two Treatises of Government. Ed. Peter Laslett. Cambridge, New York, Melbourne: Cambridge University Press, 1988. McLeod, K. “How Copyright Law Changed Hip Hop: An Interview with Public Enemy’s Chuck D and Hank Shocklee.” Stay Free (2002). 14 June 2006 http://www.stayfreemagazine.org/archives/20/public_enemy.html 〉 . McLeod, K. “Confessions of an Intellectual (Property): Danger Mouse, Mickey Mouse, Sonny Bono, and My Long and Winding Path as a Copyright Activist-Academic.” Popular Music & Society 28 (2005): 79. McLeod, K. Freedom of Expression: Overzealous Copyright Bozos and Other Enemies of Creativity. United States: Doubleday Books, 2005. Miller, M.W. “Creativity Furor: High-Tech Alteration of Sights and Sounds Divides the Art World.” Wall Street Journal (1987): 1. Ou, T. “From Wheaton v. Peters to Eldred v. Reno: An Originalist Interpretation of the Copyright Clause.” Berkman Center for Internet & Society (2000). 14 June 2006 http://cyber.law.harvard.edu/openlaw/eldredvashcroft/cyber/OuEldred.pdf 〉 . Samuelson, P. “Information as Property: Do Ruckelshaus and Carpenter Signal a Changing Direction in Intellectual Property Law?” Catholic University Law Review 38 (1989): 365. Travis, H. “Pirates of the Information Infrastructure: Blackstonian Copyright and the First Amendment.” Berkeley Technology Law Journal 15 (2000): 777. Vaidhyanathan, S. Copyrights and Copywrongs: The Rise of Intellectual Property and How It Threatens Creativity. New York: New York UP, 2003. Citation reference for this article MLA Style Collins, Steve. "‘Property Talk’ and the Revival of Blackstonian Copyright." M/C Journal 9.4 (2006). echo date('d M. Y'); ? 〉 〈 http://journal.media-culture.org.au/0609/5-collins.php 〉 . APA Style Collins, S. (Sep. 2006) "‘Property Talk’ and the Revival of Blackstonian Copyright," M/C Journal, 9(4). Retrieved echo date('d M. Y'); ? 〉 from 〈 http://journal.media-culture.org.au/0609/5-collins.php 〉 .

Abstract: In 1956, John Cage predicted that “in the future, records will be made from records” (Duffel, 202). Certainly, musical creativity has always involved a certain amount of appropriation and adaptation of previous works. For example, Vivaldi appropriated and adapted the “Cum sancto spiritu” fugue of Ruggieri’s Gloria (Burnett, 4; Forbes, 261). If stuck for a guitar solo on stage, Keith Richards admits that he’ll adapt Buddy Holly for his own purposes (Street, 135). Similarly, Nirvana adapted the opening riff from Killing Jokes’ “Eighties” for their song “Come as You Are”. Musical “quotation” is actively encouraged in jazz, and contemporary hip-hop would not exist if the genre’s pioneers and progenitors had not plundered and adapted existing recorded music. Sampling technologies, however, have taken musical adaptation a step further and realised Cage’s prediction. Hardware and software samplers have developed to the stage where any piece of audio can be appropriated and adapted to suit the creative impulses of the sampling musician (or samplist). The practice of sampling challenges established notions of creativity, with whole albums created with no original musical input as most would understand it—literally “records made from records.” Sample-based music is premised on adapting audio plundered from the cultural environment. This paper explores the ways in which technology is used to adapt previous recordings into new ones, and how musicians themselves have adapted to the potentials of digital technology for exploring alternative approaches to musical creativity. Sampling is frequently defined as “the process of converting an analog signal to a digital format.” While this definition remains true, it does not acknowledge the prevalence of digital media. The “analogue to digital” method of sampling requires a microphone or instrument to be recorded directly into a sampler. Digital media, however, simplifies the process. For example, a samplist can download a video from YouTube and rip the audio track for editing, slicing, and manipulation, all using software within the noiseless digital environment of the computer. Perhaps it is more prudent to describe sampling simply as the process of capturing sound. Regardless of the process, once a sound is loaded into a sampler (hardware or software) it can be replayed using a MIDI keyboard, trigger pad or sequencer. Use of the sampled sound, however, need not be a faithful rendition or clone of the original. At the most basic level of manipulation, the duration and pitch of sounds can be altered. The digital processes that are implemented into the Roland VariOS Phrase Sampler allow samplists to eliminate the pitch or melodic quality of a sampled phrase. The phrase can then be melodically redefined as the samplist sees fit: adapted to a new tempo, key signature, and context or genre. Similarly, software such as Propellerhead’s ReCycle slices drum beats into individual hits for use with a loop sampler such as Reason’s Dr Rex module. Once loaded into Dr Rex, the individual original drum sounds can be used to program a new beat divorced from the syncopation of the original drum beat. Further, the individual slices can be subjected to pitch, envelope (a component that shapes the volume of the sound over time) and filter (a component that emphasises and suppresses certain frequencies) control, thus an existing drum beat can easily be adapted to play a new rhythm at any tempo. For example, this rhythm was created from slicing up and rearranging Clyde Stubblefield’s classic break from James Brown’s “Funky Drummer”. Sonic adaptation of digital information is not necessarily confined to the auditory realm. An audio editor such as Sony’s Sound Forge is able to open any file format as raw audio. For example, a Word document or a Flash file could be opened with the data interpreted as audio. Admittedly, the majority of results obtained are harsh white noise, but there is scope for serendipitous anomalies such as a glitchy beat that can be extracted and further manipulated by audio software. Audiopaint is an additive synthesis application created by Nicolas Fournel for converting digital images into audio. Each pixel position and colour is translated into information designating frequency (pitch), amplitude (volume) and pan position in the stereo image. The user can determine which one of the three RGB channels corresponds to either of the stereo channels. Further, the oscillator for the wave form can be either the default sine wave or an existing audio file such as a drum loop can be used. The oscillator shapes the end result, responding to the dynamics of the sine wave or the audio file. Although Audiopaint labours under the same caveat as with the use of raw audio, the software can produce some interesting results. Both approaches to sound generation present results that challenge distinctions between “musical sound” and “noise”. Sampling is also a cultural practice, a relatively recent form of adaptation extending out of a time honoured creative aesthetic that borrows, quotes and appropriates from existing works to create new ones. Different fields of production, as well as different commentators, variously use terms such as “co-creative media”, “cumulative authorship”, and “derivative works” with regard to creations that to one extent or another utilise existing works in the production of new ones (Coombe; Morris; Woodmansee). The extent of the sampling may range from subtle influence to dominating significance within the new work, but the constant principle remains: an existing work is appropriated and adapted to fit the needs of the secondary creator. Proponents of what may be broadly referred to as the “free culture” movement argue that creativity and innovation inherently relies on the appropriation and adaptation of existing works (for example, see Lessig, Future of Ideas; Lessig, Free Culture; McLeod, Freedom of Expression; Vaidhyanathan). For example, Gwen Stefani’s 2004 release “Rich Girl” is based on Louchie Lou and Michie One’s 1994 single of the same title. Lou and One’s “Rich Girl”, in turn, is a reggae dance hall adaptation of “If I Were a Rich Man” from Fiddler on the Roof. Stefani’s “na na na” vocal riff shares the same melody as the “Ya ha deedle deedle, bubba bubba deedle deedle dum” riff from Fiddler on the Roof. Samantha Mumba adapted David Bowie’s “Ashes to Ashes” for her second single “Body II Body”. Similarly, Richard X adapted Tubeway Army’s “Are ‘Friends’ Electric?’ and Adina Howard’s “Freak Like Me” for a career saving single for Sugababes. Digital technologies enable and even promote the adaptation of existing works (Morris). The ease of appropriating and manipulating digital audio files has given rise to a form of music known variously as mash-up, bootleg, or bastard pop. Mash-ups are the most recent stage in a history of musical appropriation and they epitomise the sampling aesthetic. Typically produced in bedroom computer-based studios, mash-up artists use software such as Acid or Cool Edit Pro to cut up digital music files and reassemble the fragments to create new songs, arbitrarily adding self-composed parts if desired. Comprised almost exclusively from sections of captured music, mash-ups have been referred to as “fictional pop music” because they conjure up scenarios where, for example, Destiny’s Child jams in a Seattle garage with Nirvana or the Spice Girls perform with Nine Inch Nails (Petridis). Once the initial humour of the novelty has passed, the results can be deeply alluring. Mash-ups extract the distinctive characteristics of songs and place them in new, innovative contexts. As Dale Lawrence writes: “the vocals are often taken from largely reviled or ignored sources—cornball acts like Aguilera or Destiny’s Child—and recast in wildly unlikely contexts … where against all odds, they actually work”. Similarly, Crawford argues that “part of the art is to combine the greatest possible aesthetic dissonance with the maximum musical harmony. The pleasure for listeners is in discovering unlikely artistic complementarities and revisiting their musical memories in mutated forms” (36). Sometimes the adaptation works in the favour of the sampled artist: George Clinton claims that because of sampling he is more popular now than in 1976—“the sampling made us big again” (Green). The creative aspect of mash-ups is unlike that usually associated with musical composition and has more in common with DJing. In an effort to further clarify this aspect, we may regard DJ mixes as “mash-ups on the fly.” When Grandmaster Flash recorded his quilt-pop masterpiece, “Adventures of Grandmaster Flash on the Wheels of Steel,” it was recorded while he performed live, demonstrating his precision and skill with turntables. Modern audio editing software facilitates the capture and storage of sound, allowing mash-up artists to manipulate sounds bytes outside of “real-time” and the live performance parameters within which Flash worked. Thus, the creative element is not the traditional arrangement of chords and parts, but rather “audio contexts”. If, as Riley pessimistically suggests, “there are no new chords to be played, there are no new song structures to be developed, there are no new stories to be told, and there are no new themes to explore,” then perhaps it is understandable that artists have searched for new forms of musical creativity. The notes and chords of mash-ups are segments of existing works sequenced together to produce inter-layered contexts rather than purely tonal patterns. The merit of mash-up culture lies in its function of deconstructing the boundaries of genre and providing new musical possibilities. The process of mashing-up genres functions to critique contemporary music culture by “pointing a finger at how stifled and obvious the current musical landscape has become. … Suddenly rap doesn’t have to be set to predictable funk beats, pop/R & B ballads don’t have to come wrapped in cheese, garage melodies don’t have to recycle the Ramones” (Lawrence). According to Theodor Adorno, the Frankfurt School critic, popular music (of his time) was irretrievably simplistic and constructed from easily interchangeable, modular components (McLeod, “Confessions”, 86). A standardised and repetitive approach to musical composition fosters a mode of consumption dubbed by Adorno “quotation listening” and characterised by passive acceptance of, and obsession with, a song’s riffs (44-5). As noted by Em McAvan, Adorno’s analysis elevates the producer over the consumer, portraying a culture industry controlling a passive audience through standardised products (McAvan). The characteristics that Adorno observed in the popular music of his time are classic traits of contemporary popular music. Mash-up artists, however, are not representative of Adorno’s producers for a passive audience, instead opting to wrest creative control from composers and the recording industry and adapt existing songs in pursuit of their own creative impulses. Although mash-up productions may consciously or unconsciously criticise the current state of popular music, they necessarily exist in creative symbiosis with the commercial genres: “if pop songs weren’t simple and formulaic, it would be much harder for mashup bedroom auteurs to do their job” (McLeod, “Confessions”, 86). Arguably, when creating mash-ups, some individuals are expressing their dissatisfaction with the stagnation of the pop industry and are instead working to create music that they as consumers wish to hear. Sample-based music—as an exercise in adaptation—encourages a Foucauldian questioning of the composer’s authority over their musical texts. Recorded music is typically a passive medium in which the consumer receives the music in its original, unaltered form. DJ Dangermouse (Brian Burton) breached this pact to create his Grey Album, which is a mash-up of an a cappella version of Jay-Z’s Black Album and the Beatles’ eponymous album (also known as the White Album). Dangermouse says that “every kick, snare, and chord is taken from the Beatles White Album and is in their original recording somewhere.” In deconstructing the Beatles’ songs, Dangermouse turned the recordings into a palette for creating his own new work, adapting audio fragments to suit his creative impulses. As Joanna Demers writes, “refashioning these sounds and reorganising them into new sonic phrases and sentences, he creates acoustic mosaics that in most instances are still traceable to the Beatles source, yet are unmistakeably distinct from it” (139-40). Dangermouse’s approach is symptomatic of what Schütze refers to as remix culture: an open challenge to a culture predicated on exclusive ownership, authorship, and controlled distribution … . Against ownership it upholds an ethic of creative borrowing and sharing. Against the original it holds out an open process of recombination and creative transformation. It equally calls into question the categories, rifts and borders between high and low cultures, pop and elitist art practices, as well as blurring lines between artistic disciplines. Using just a laptop, an audio editor and a calculator, Gregg Gillis, a.k.a. Girl Talk, created the Night Ripper album using samples from 167 artists (Dombale). Although all the songs on Night Ripper are blatantly sampled-based, Gillis sees his creations as “original things” (Dombale). The adaptation of sampled fragments culled from the Top 40 is part of Gillis’ creative process: “It’s not about who created this source originally, it’s about recontextualising—creating new music. … I’ve always tried to make my own songs” (Dombale). Gillis states that his music has no political message, but is a reflection of his enthusiasm for pop music: “It’s a celebration of everything Top 40, that’s the point” (Dombale). Gillis’ “celebratory” exercises in creativity echo those of various fan-fiction authors who celebrate the characters and worlds that constitute popular culture. Adaptation through sampling is not always centred solely on music. Sydney-based Tom Compagnoni, a.k.a. Wax Audio, adapted a variety of sound bytes from politicians and media personalities including George W. Bush, Alexander Downer, Alan Jones, Ray Hadley, and John Howard in the creation of his Mediacracy E.P.. In one particular instance, Compagnoni used a myriad of samples culled from various media appearances by George W. Bush to recreate the vocals for John Lennon’s Imagine. Created in early 2005, the track, which features speeded-up instrumental samples from a karaoke version of Lennon’s original, is an immediate irony fuelled comment on the invasion of Iraq. The rationale underpinning the song is further emphasised when “Imagine This” reprises into “Let’s Give Peace a Chance” interspersed with short vocal fragments of “Come Together”. Compagnoni justifies his adaptations by presenting appropriated media sound bytes that deliberately set out to demonstrate the way information is manipulated to present any particular point of view. Playing the media like an instrument, Wax Audio juxtaposes found sounds in a way that forces the listener to confront the bias, contradiction and sensationalism inherent in their daily intake of media information. … Oh yeah—and it’s bloody funny hearing George W Bush sing “Imagine”. Notwithstanding the humorous quality of the songs, Mediacracy represents a creative outlet for Compagnoni’s political opinions that is emphasised by the adaptation of Lennon’s song. Through his adaptation, Compagnoni revitalises Lennon’s sentiments about the Vietnam War and superimposes them onto the US policy on Iraq. An interesting aspect of sampled-based music is the re-occurrence of particular samples across various productions, which demonstrates that the same fragment can be adapted for a plethora of musical contexts. For example, Clyde Stubblefield’s “Funky Drummer” break is reputed to be the most sampled break in the world. The break from 1960s soul/funk band the Winstons’ “Amen Brother” (the B-side to their 1969 release “Color Him Father”), however, is another candidate for the title of “most sampled break”. The “Amen break” was revived with the advent of the sampler. Having featured heavily in early hip-hop records such as “Words of Wisdom” by Third Base and “Straight Out of Compton” by NWA, the break “appears quite adaptable to a range of music genres and tastes” (Harrison, 9m 46s). Beginning in the early 1990s, adaptations of this break became a constant of jungle music as sampling technology developed to facilitate more complex operations (Harrison, 5m 52s). The break features on Shy FX’s “Original Nutta”, L Double & Younghead’s “New Style”, Squarepusher’s “Big Acid”, and a cover version of Led Zepplin’s “Whole Lotta Love” by Jane’s Addiction front man Perry Farrell. This is to name but a few tracks that have adapted the break. Wikipedia offers a list of songs employing an adaptation of the “Amen break”. This list, however, falls short of the “hundreds of tracks” argued for by Nate Harrison, who notes that “an entire subculture based on this one drum loop … six seconds from 1969” has developed (8m 45s). The “Amen break” is so ubiquitous that, much like the twelve bar blues structure, it has become a foundational element of an entire genre and has been adapted to satisfy a plethora of creative impulses. The sheer prevalence of the “Amen break” simultaneously illustrates the creative nature of music adaptation as well as the potentials for adaptation stemming from digital technology such as the sampler. The cut-up and rearrangement aspect of creative sampling technology at once suggests the original but also something new and different. Sampling in general, and the phenomenon of the “Amen break” in particular, ensures the longevity of the original sources; sampled-based music exhibits characteristics acquired from the source materials, yet the illegitimate offspring are not their parents. Sampling as a technology for creatively adapting existing forms of audio has encouraged alternative approaches to musical composition. Further, it has given rise to a new breed of musician that has adapted to technologies of adaptation. Mash-up artists and samplists demonstrate that recorded music is not simply a fixed or read-only product but one that can be freed from the composer’s original arrangement to be adapted and reconfigured. Many mash-up artists such as Gregg Gillis are not trained musicians, but their ears are honed from enthusiastic consumption of music. Individuals such as DJ Dangermouse, Gregg Gillis and Tom Compagnoni appropriate, reshape and re-present the surrounding soundscape to suit diverse creative urges, thereby adapting the passive medium of recorded sound into an active production tool. References Adorno, Theodor. “On the Fetish Character in Music and the Regression of Listening.” The Culture Industry: Selected Essays on Mass Culture. Ed. J. Bernstein. London, New York: Routledge, 1991. Burnett, Henry. “Ruggieri and Vivaldi: Two Venetian Gloria Settings.” American Choral Review 30 (1988): 3. Compagnoni, Tom. “Wax Audio: Mediacracy.” Wax Audio. 2005. 2 Apr. 2007 http://www.waxaudio.com.au/downloads/mediacracy 〉 . Coombe, Rosemary. The Cultural Life of Intellectual Properties. Durham, London: Duke University Press, 1998. Demers, Joanna. Steal This Music: How Intellectual Property Law Affects Musical Creativity. Athens, London: University of Georgia Press, 2006. Dombale, Ryan. “Interview: Girl Talk.” Pitchfork. 2006. 9 Jan. 2007 http://www.pitchforkmedia.com/article/feature/37785/Interview_Interview_Girl_Talk 〉 . Duffel, Daniel. Making Music with Samples. San Francisco: Backbeat Books, 2005. Forbes, Anne-Marie. “A Venetian Festal Gloria: Antonio Lotti’s Gloria in D Major.” Music Research: New Directions for a New Century. Eds. M. Ewans, R. Halton, and J. Phillips. London: Cambridge Scholars Press, 2004. Green, Robert. “George Clinton: Ambassador from the Mothership.” Synthesis. Undated. 15 Sep. 2005 http://www.synthesis.net/music/story.php?type=story & id=70 〉 . Harrison, Nate. “Can I Get an Amen?” Nate Harrison. 2004. 8 Jan. 2007 http://www.nkhstudio.com 〉 . Lawrence, Dale. “On Mashups.” Nuvo. 2002. 8 Jan. 2007 http://www.nuvo.net/articles/article_292/ 〉 . Lessig, Lawrence. The Future of Ideas. New York: Random House, 2001. ———. Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity. New York: The Penguin Press, 2004. McAvan, Em. “Boulevard of Broken Songs: Mash-Ups as Textual Re-Appropriation of Popular Music Culture.” M/C Journal 9.6 (2006) 3 Apr. 2007 http://journal.media-culture.org.au/0612/02-mcavan.php 〉 . McLeod, Kembrew. “Confessions of an Intellectual (Property): Danger Mouse, Mickey Mouse, Sonny Bono, and My Long and Winding Path as a Copyright Activist-Academic.” Popular Music & Society 28.79. ———. Freedom of Expression: Overzealous Copyright Bozos and Other Enemies of Creativity. United States: Doubleday Books. Morris, Sue. “Co-Creative Media: Online Multiplayer Computer Game Culture.” Scan 1.1 (2004). 8 Jan. 2007 http://scan.net.au/scan/journal/display_article.php?recordID=16 〉 . Petridis, Alexis. “Pop Will Eat Itself.” The Guardian UK. March 2003. 8 Jan. 2007 http://www.guardian.co.uk/arts/critic/feature/0,1169,922797,00.html 〉 . Riley. “Pop Will Eat Itself—Or Will It?”. The Truth Unknown (archived at Archive.org). 2003. 9 Jan. 2007 http://web.archive.org/web/20030624154252 /www.thetruthunknown.com/viewnews.asp?articleid=79 〉 . Schütze, Bernard. “Samples from the Heap: Notes on Recycling the Detritus of a Remixed Culture”. Horizon Zero 2003. 8 Jan. 2007 http://www.horizonzero.ca/textsite/remix.php?tlang=0 & is=8 & file=5 〉 . Vaidhyanathan, Siva. Copyrights and Copywrongs: The Rise of Intellectual Property and How It Threatens Creativity. New York, London: New York University Press, 2003. Woodmansee, Martha. “On the Author Effect: Recovering Collectivity.” The Construction of Authorship: Textual Appropriation in Law and Literature. Eds. M. Woodmansee, P. Jaszi and P. Durham; London: Duke University Press, 1994. 15. Citation reference for this article MLA Style Collins, Steve. "Amen to That: Sampling and Adapting the Past." M/C Journal 10.2 (2007). echo date('d M. Y'); ? 〉 〈 http://journal.media-culture.org.au/0705/09-collins.php 〉 . APA Style Collins, S. (May 2007) "Amen to That: Sampling and Adapting the Past," M/C Journal, 10(2). Retrieved echo date('d M. Y'); ? 〉 from 〈 http://journal.media-culture.org.au/0705/09-collins.php 〉 .

Abstract: Nine Inch Nails have just released a new single; In addition to the usual formats, “The Hand That Feeds” was available for free download in Garageband format. Trent Reznor explained, “For quite some time I’ve been interested in the idea of allowing you the ability to tinker around with my tracks – to create remixes, experiment, embellish or destroy what’s there” (MacMinute 15 April 2005). Reznor invites creativity facilitated by copying and transformation. “Copy” carries connotations of unsavoury notions such as piracy, stealing, fake, and plagiarism. Conversely, in some circumstances copying is acceptable, some situations demand copying. This article examines the treatment of “copy” at the intersection of musical creativity and copyright law with regard to cover versions and sampling. Waldron reminds us that copyright was devised first and foremost with a public benefit in mind (851). This fundamental has been persistently reiterated (H. R Rep. (1909); Sen. Rep. (1909); H. R. Rep. (1988); Patterson & Lindberg 70). The law grants creators a bundle of rights in copyrighted works. Two rights implicated in recorded music are located in the composition and the recording. Many potential uses of copyrighted songs require a license. The Copyright Act 1976, s. 115 provides a compulsory licence for cover versions. In other words, any song can be covered for a statutory royalty fee. The law curtails the extent of the copyright monopoly. Compulsory licensing serves both creative and business sides of the recording industry. First, it ensures creative diversity. Musicians are free to reinterpret cultural soundtracks. Second, it safeguards the composer’s right to generate an income from his work by securing royalties for subsequent usage. Although s. 115 permits a certain degree of artistic licence, it requires “the arrangement shall not change the basic melody or fundamental character of the work”. Notwithstanding this proviso, songs can still be transformed and their meaning reshaped. Johnny Cash was able to provide an insight into the mind of a dying man through covering such songs as Nine Inch Nails’ “Hurt”, Depeche Mode’s “Personal Jesus” and Parker & Charles’ “We’ll Meet Again”. Compulsory licensing was introduced in response to a Supreme Court decision that deprived composers of royalties. Congress recognised: The main object to be desired in expanding copyright protection accorded to music has been to give to the composer an adequate return for the value of his composition, and it has been a serious and difficult task to combine the protection of the composer with the protection of the public, and to so frame an act that it would accomplish the double purpose of securing to the composer and at the same time prevent the formation of oppressive monopolies, which might be founded upon the very rights granted to the composer for the purpose of protecting his interests (H. R. Rep. (1909)). Composers exercise rights over the initial exploitation of a song. Once a recording is released, the right is curtailed to serve the public dimension of copyright. A sampler is a device that allows recorded (sampled) sounds to be triggered from a MIDI keyboard or sequencer. Samplers provide potent tools for transforming sounds – filters, pitch-shifting, time-stretching and effects can warp samples beyond recognition. Sampling is a practice that formed the backbone of rap and hip-hop, features heavily in many forms of electronic music, and has proved invaluable in many studio productions (Rose 73-80; Prendergast 383-84, 415-16, 433-34). Samples implicate both of the musical copyrights mentioned earlier. To legally use a sample, the rights in the recording and the underlying composition must be licensed. Ostensibly, acquiring permission to use the composition poses few obstacles due to the compulsory licence. The sound recording, however, is a different matter entirely. There is no compulsory licence for sound recordings. Copyright owners (usually record labels) are free to demand whatever fees they see fit. For example, SST charged Fatboy Slim $1000 for sampling a Negativland record (Negativland). (Ironically, the sample was itself an unlicensed sample appropriated from a 1966 religious recording.) The price paid by The Verve for sampling an obscure orchestral version of a Rolling Stones song was more substantial. Allan Klein owns the copyright in “The Last Time” released by The Andrew Oldham Orchestra in 1965 (American Hit Network, undated). Licence negotiations for the sample left Klein with 100% of the royalties from the song and The Verve with a bitter taste. To add insult to injury, “Bittersweet Symphony” was attributed to Mick Jagger and Keith Richards when the song was nominated for a Grammy (Superswell, undated). License fees can prove prohibitive to many musicians and may outweigh the artistic merit in using the sample: “Sony wanted five thousand dollars for the Clash sample, which … is one thousand dollars a word. In retrospect, this was a bargain, given the skyrocketing costs of sampling throughout the 1990s” (McLeod 86). Adam Dorn, alias Mocean Worker, tried for nine months to licence a sample of gospel singer Mahalia Jackson. Eventually his persistent requests were met with a demand for $10,000 in advance with royalties of six cents per record. Dorn was working with an album budget of a mere $40 and was expecting to sell 2500 copies (Beaujon 25). Unregulated licensing fees stifle creativity and create a de facto monopoly over recorded music. Although copyright was designed to be an engine of free expression1 it still carries characteristics of its monopolistic, totalitarian heritage. The decision in Bridgeport Music v. Dimension Films supported this monopoly. Judge Guy ruled, “Get a license or do not sample. We do not see this stifling creativity in any significant way” (397). The lack of compulsory licensing and the Bridgeport decision creates an untenable situation for sampling musicians and adversely impacts upon the public benefit derived from creative diversity and transformative works (Netanel 288, 331). The sobering potential for lawsuits, ruinous legal costs, injunctions, damages (to copyright owners as well as master recordings), suppresses the creativity of musicians unwilling or unable to pay licence fees (Negativland 251.). I’m a big fan of David Bowie. If I wanted to release a cover version of “Survive”, Bowie and Gabrels (composers) and BMI (publishers) could not prevent it. According the Harry Fox Agency’s online licensing system, it would cost $222.50 (US) for a licence to produce 2500 copies. The compulsory licence demands fidelity to the character of the original. Although my own individual style would be embedded in the cover version, the potential for transformation is limited. Whilst trawling through results from a search for “acapella” on the Soulseek network I found an MP3 of the vocal acapella for “Survive”. Thirty minutes later Bowie was loaded into Sonar 4 and accompanied by a drum loop and bass line whilst I jammed along on guitar and tinkered with synths. Free access to music encourages creative diversity and active cultural participation. Licensing fees, however, may prohibit such creative explorations. Sampling technology offers some truly innovative possibilities for transforming recorded sound. The Roland VariOS can pitch-eliminate; a vocal sample can be reproduced to a melody played by the sampling musician. Although the original singer’s voice is preserved the melody and characteristic nuances can be significantly altered: V-Producer’s Phrase Scope [a syst em software component] separates the melody from the rest of the phrase, allowing users to re-construct a new melody or add harmonies graphically, or by playing in notes from a MIDI keyboard. Using Phrase Scope, you can take an existing vocal phrase or melodic instrument phrase and change the actual notes, phrasing and vocal gender without unwanted artefacts. Bowie’s original vocal could be aligned with an original melody and set to an original composition. The original would be completely transformed into a new creative work. Unfortunately, EMI is the parent company for Virgin Records, the copyright owner of “Survive”. It is doubtful licence fees could be accommodated by many inspired bedroom producers. EMI’s reaction to DJ Dangermouse’s “Grey Album“ suggests that it would not look upon unlicensed sampling with any favour. Threatening letters from lawyers representing one of the “Big Four” are enough to subjugate most small time producers. Fair use? If a musician is unable to afford a licence, it is unlikely he can afford a fair use defence. Musicians planning only a limited run, underground release may be forgiven for assuming that the “Big Four” have better things to do than trawl through bins of White Labels for unlicensed samples. Professional bootlegger Richard X found otherwise when his history of unlicensed sampling caught up to him: “A certain major label won’t let me use any samples I ask them to. We just got a report back from them saying, ‘Due to Richard’s earlier work of which we are well aware, we will not be assisting him with any future projects’” (Petridis). For record labels “copy” equals “money”. Allan Klein did very well out of licensing his newly acquired “Bittersweet Symphony” to Nike (Superswell). Inability to afford either licences or legal costs means that some innovative and novel creations will never leave the bedroom. Sampling masterpieces such as “It Takes a Nation of Millions to Hold Us Back” are no longer cost effective (McLeod). The absence of a compulsory licence for sampling permits a de facto monopoly over recorded music. Tricia Rose notes the recording industry knows the value of “copy” (90). “Copy” is permissible as long as musicians pay for the privilege – if the resultant market for the sampling song is not highly profitable labels may decline to negotiate a licence. Some parties have recognised the value of the desire to creatively engage with music. UK (dis)band(ed) Curve posted component samples of their song “Unreadable Communication” on their website and invited fans to create their own versions of the song. All submissions were listed on the website. Although the band reserved copyright, they permitted me to upload my version to my online distribution website for free download. It has been downloaded 113 times and streamed a further 112 times over the last couple of months. The remix project has a reciprocal dimension: Creative engagement strengthens the fan base. Guitarist/programmer, Dean Garcia, states “the main reason for posting the samples is for others to experiment with something they love . . . an opportunity as you say to mess around with something you otherwise would never have access to2”. Umixit is testing the market for remixable songs. Although the company has only five bands on its roster (the most notable being Aerosmith), it will be interesting to observe the development of a market for “neutered sampling” and how long it will be before the majors claim a stake. The would-be descendants of Grand Master Flash and Afrika Bambaataa may find themselves bound by end-user licences and contracts. The notion of “copy” at the nexus of creativity and copyright law is simultaneously a vehicle for free expression and a vulgar infringement on a valuable economic interest. The compulsory licence for cover versions encourages musicians to rework existing music, uncover hidden meaning, challenge the boundaries of genre, and actively participate in culture creation. Lack of affirmative congressional or judicial interference in the current sampling regime places the beneficial aspects of “copy” under an oppressive monopoly founded on copyright, an engine of free expression. References American Hit Network. “Bittersweet Symphony – The Verve.” Undated. 17 April 2005 http://www.americanhitnetwork.com/1990/fsongs.cfm?id=8 & view=detail & rank=1 〉 . Beaujon, A. “It’s Not The Beat, It’s the Mocean.’ CMJ New Music Monthly, April 1999. EMI. “EMI and Orange Announce New Music Deal.” Immediate Future: PR & Communications, 6 January 2005. 17 April 2005 http://www.immediatefuture.co.uk/359 〉 . H. R. Rep. No. 2222. 60th Cong., 2nd Sess. 7. 1909. H. R. Rep. No. 609. 100th Cong., 2nd Sess. 23. 1988. MacMinute. “NIN Offers New Single in GarageBand Format.” 15 April 2005. 16 April 2005 http://www.macminute.com/2005/04/15/nin/ 〉 . McLeod, K. “How Copyright Law Changed Hip Hop: An Interview with Public Enemy’s Chuck D and Hank Shocklee.” Stay Free 2002, 23 June 2004 http://www.stayfreemagazine.org/archives/20/public_enemy.html 〉 . McLeod, K. Freedom of Expression: Overzealous Copyright Bozos and Other Enemies of Creativity. United States: Doubleday Books, 2005. Negativland. “Discography.” Undated. 18 April 2005 http://www.negativland.com/negdisco.html 〉 . Negativland (ed.). Fair Use: The Story of the Letter U and the Numeral 2. Concord: Seeland, 2005. Netanel, N. W. “Copyright and a Democratic Civil Society.” 106 Yale L. J. 283. 1996. Patterson, L.R., and S. Lindberg. The Nature of Copyright: A Law of Users’ Rights. Georgia: U of Georgia P, 1991. Petridis, A. “Pop Will Eat Itself.” The Guardian (UK) 2003. 22 June 2004 http://www.guardian.co.uk/arts/critic/feature/0,1169,922797,00.html 〉 . Prendergast, M. The Ambient Century: From Mahler to Moby – The Evolution of Sound in the Electronic Age. London: Bloomsbury, 2003. Rose, T. Black Noise: Rap Music and Black Culture in Contemporary America. Middletown: Wesleyan UP, 2004. Sen. Rep. No. 1108, 60th Cong., 2nd Sess. 7. 1909. Superswell. “Horror Stories.” 17 April 2005 http://www.superswell.com/samplelaw/horror.html 〉 . Waldron, J. “From Authors to Copiers: Individual Rights and Social Values in Intellectual Property.” 68 Chicago-Kent Law Review 842, 1998. Endnotes 1 Harper & Row, Publishers, Inc. v. Nation Enterprises 471 U.S. 539, 558 (1985). 2 From personal correspondence with Curve dated 16 September 2004. Citation reference for this article MLA Style Collins, Steve. "Good Copy, Bad Copy: Covers, Sampling and Copyright." M/C Journal 8.3 (2005). echo date('d M. Y'); ? 〉 〈 http://journal.media-culture.org.au/0507/02-collins.php 〉 . APA Style Collins, S. (Jul. 2005) "Good Copy, Bad Copy: Covers, Sampling and Copyright," M/C Journal, 8(3). Retrieved echo date('d M. Y'); ? 〉 from 〈 http://journal.media-culture.org.au/0507/02-collins.php 〉 .

Abstract: Introduction The mediascape abounds with examples of re-imaginings, works that re-interpret existing media texts (many of which have been the focus of lawsuits). Alice Randall’s The Wind Done Gone (2001), re-imagines the narrative of Margaret Mitchell’s Gone with the Wind (1936) to tell the story from the perspective of Cynara, one of Scarlett O’Hara’s slaves. Gregg Gillis, a.k.a. Girl Talk, re-imagines the music of the ‘Top 40’ bringing together Elton John and Notorious B.I.G. on ‘Smash Your Head’ (2006). Dream Country (1991), the third Sandman graphic novel, sees author Neil Gaiman re-imagine A Midsummer Night’s Dream as a creative partnership between Shakespeare and Dream (a cosmic entity charged with governing the realm of dreams). Media frequently builds on existing media, and in more overt cases, media is directly made from media; this is especially true of user-generated content, in which media is frequently sampled, mashed-up and remixed to shed new light and create new meaning. The freedom to re-imagine media texts, however, is problematised by copyright law, which confers exclusive rights to make copies and derivatives. That contemporary copyright laws can stifle creativity and innovation is a mantra that was repeated throughout the late 1990s and early 2000s by proponents of the free culture movement such as Lawrence Lessig, Siva Vaidyanathan and Kembrew McLeod. This paper questions whether these critiques are still valid through the deployment of recent examples including Robin Thicke’s ‘Blurred Lines’ and Melissa Hunter’s web series, ‘Adult Wednesday Addams’. There is a focus herein on the copyright regime of the US as many of the key global players in the content industries are based there, a factor that exerts considerable influence over how the rest of the world can interact (or not) with copyrighted works. The Benefits of a Re-imagination In the copyright discourse, re-imaginings are typically referred to as transformative works; works that build on and supersede the original. Transformative works create and uncover meaning and values by disrupting the barriers between diverse histories, traditions and genres to comment, parody, bolster, undermine and emphasise the cultural values of past, present and future. Existing works can find themselves re-presented in ways never expressed, nor perhaps intended or explored by the original authors, such are the cultural lives of intellectual properties (Coombe). Derivative works are always the intellectual progeny of a parent work but the legal understanding of that relationship can be problematic. Transformation of existing works is by no means a recent phenomenon and some argue it is a fundamental part of creativity (Lessig 24). Digital technologies make it relatively easy to appropriate, remix and distribute, leading some commentators to claim that we live in a remix culture. Nicholas Diakopoulos et al. suggest that “Remix culture refers to a society that encourages derivative works by combining or modifying existing media” (1). Similarly, Negativland state that “free appropriation is inevitable when a population bombarded with electronic media meets the hardware that encourages them to capture it” (251). Sue Morris argues that digital technology enables and even promotes the appropriation of existing works. Appropriating and re-imagining existing media is a method for casting a critical eye over society to reveal “contested issues and deep fissures”, something which Neil Netanel argues is essential to a democratic civil society (“Copyright in a Democratic Civil Society” 351). Nicolas Suzor lauds the “significant benefits arising from transformative use, including the enhanced availability of diverse and decentralised speech and the freedom of individuals to express themselves, but also including the social benefits that come from deconstructing the media saturated environment we inhabit, and the benefits of not having such a large portion of that environment off-limits to creative expression” (24). Not all derivative works, however, are charged with such critical civic purpose. Sequels, spin-offs, crossovers and migrations into alternative platforms and territories can be highly lucrative for copyright owners. For example, aside from appearing in an eponymous Marvel Comics title, the superhero character Daredevil has featured in animations, live action film, television series, video games and toy lines. The potential value in horizontal markets moves copyright owners to aggressively protect their intellectual properties and clamp down on unauthorised uses of copyrighted works. J.K. Rowling and Warner Bros. flexed their legal muscles to enjoin various international publishers from producing Harry Potter derivatives such as the anonymously authored Harry Potter and Leopard Walk Up to Dragon (actually a textual mashup of J.R.R. Tolkien’s The Hobbit with characters from Rowling’s series) and Dmitri Yemets’ Tanya Grotter and the Magic Double Bass, in which the titular character is a female apprentice wizard. These, amongst similar derivatives, reimagine both the character and world of Harry Potter in alternative and previously unexplored (and culturally local) contexts and scenarios. Whilst J.K. Rowling and Warner Bros. can be forgiven for protecting their interests against piracy, it is unlikely these derivative titles represented any serious competition in the market. As Tim Wu argues, “in the end, few people are likely to mistake Tanya Grotter for Harry Potter; it is akin to mistaking Burger King for McDonalds.” Copyright The process of re-imagining an existing work is likely to encounter the obstacle of copyright law. We tend to talk about copyright in the singular, but it is actually a bundle of rights secured to an author (who may assign any or all of those rights to another individual or company such as publisher or record label). The creative expression of authors is protected by a range of exclusive rights concerning copying, publication and performance, as well as the creation of derivatives from the copyright work. The grant of copyright is a temporary monopoly intended “to provide an incentive to create works that would inform and advance society” (Young 47), and temporary to prevent perpetual monopolies being formed on the backs of such a right. At first blush, it might appear that copyright exists purely to benefit authors, but this reward is a secondary concern. Copyright was established with society as the primary beneficiary for the free expression incentivised by copyright: “The overall social good is served by the progress of science and the useful arts. The progress of science is served by the encouragement of authors. The encouragement of authors is secured by providing them with the incentive of legally secured monopoly profits from the sale and circulation of their works over a limited period of time” (Waldron 286). Thus, copyright’s production and structural functions underpin a democratic civil society (Netanel, “Copyright in a Democratic Civil Society”; Patry, How to Fix Copyright 131). The limited monopoly provided by copyright offers an incentive for the production of “creative expression on a wide array of political, social, and aesthetic issues, thus bolstering the discursive foundations for democratic culture and civic association” (Netanel 288). Sherman Young summarises copyright as an exercise in balancing competing interests in creative works (46–47), and William Patry describes it as “a privilege granted by governments on everyone’s behalf” (How to Fix Copyright 141). Structurally, copyright fosters free creativity and expression outside of state subsidies, elitism, and patronage. Limitations on copyright such as finite duration (currently the author’s life plus seventy years) and the doctrine of fair use ostensibly ensure that protection is porous enough that works can be freely re-used without objection or obstacle (Netanel, “Copyright in a Democratic Civil Society” 21), but as the remainder of this paper will argue, re-imagining of copyrighted works is far from free of objection or obstacle. The right to create derivatives of a work is a relatively new addition to the suite of rights enjoyed by copyright owners. Prior to the emergence of copyright, there were no legal measures to prevent the publication of unauthorised derivatives. In fact, Benjamin Kaplan attributes the wave of literary creativity that occurred during the Elizabethan era to “this freedom of appropriation and derivations” (Bettig 105; Kaplan 23–24). The Copyright Act 1790, the first US federal copyright law, only prevented wholesale copying, not derivatives in the form of abridgements or translations. Pamela Samuelson states: For more than two hundred years after the English Parliament enacted the first modern copyright law, authors i n England and the U.S. had no statutory right to control the making or exploitation of derivatives of their works. It was considered fair practice, for example, to translate an author’s work from one language to another, to abridge an existing work as long as the abridgement was itself creatively done, and to reproduce substantial parts of another’s work as long as the second comer made improvements. This was not because judges took a literalist approach to copyright infringement (i.e., regarding only exact or near-exact copying as infringement), but rather because the judges perceived translations, abridgements, and improvements as intellectual products of the second comers’ creativity and because new works that built on pre-existing works contributed to the advancement of knowledge, the very goal of modern copyright law. (1506–507) In Story v. Holcombe, in 1847, Justice McLean held that abridgment did not interfere with copyright even though the abridged version was a market substitute for the original full-length version. Six years later, Justice Grier found a German translation of Uncle Tom’s Cabin did not infringe Harriet Beecher Stowe’s copyright in her original. Prior to the existence of any copyright regime. The free re-use of existing works was increasingly curtailed starting with the Copyright Act 1870, which granted authors “the right to dramatize or to translate their own works.” The 1909 Act subsequently introduced a more general suite of derivative rights that informed the current law (Patry, Copyright Law and Practice Volume II 820); section 106(2), Copyright Act 1976 grants copyright owners “the exclusive rights to do and authorize […] derivative works based upon the copyrighted work.” The Act defines “derivative work” as one “based upon one or more preexisting works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted.” Drawing such a wide scope of re-uses within the contours of copyright does not leave much opportunity for free expression through re-imagining existing works.  A Permission Culture Contemporary copyright law has been critiqued for straying too far from its original remit to incentivise free expression, arguing that the regime is instead overly concerned with emphasising exclusivity as a means for financially exploiting intellectual properties through licensing and monetising schemes (McLeod). Lyman Ray Patterson and Stanley Lindberg argue that the law must accommodate a distinction between use of a work and use of a copyright in that work (66). Netanel (“Copyright in a Democratic Civil Society” 286) argues that contemporary copyright reflects neo-classical economic property theory, in which intellectual property is increasingly treated as rivalrous real property and vehicle for investment. Lessig employs the simpler, but no less troubling, label of “permission culture”, in which every use must be licensed (8). Emanations of such a permission culture are evident in cases such as Bridgeport Music v. Dimension Films in which Judge Guy found that the transformative sampling of just three notes amounted to copyright infringement: “Get a license or do not sample. We do not see this stifling creativity in any significant way” (397). The next section of this article considers several recent scenarios in which copyright law has stifled free expression and arguably punishes authors for re-imagining existing works. Blurred Lines ‘Blurred Lines’ is a song by Robin Thicke featuring Pharrell Williams and Clifford Harris (a.k.a. the rapper and producer T.I.) The song raised some controversy upon its release in 2013 due to its misogynistic themes but it also attracted the ire of Marvin Gaye's children who publicly accused songwriters Thicke and Williams of copying their father’s 1977 hit, ‘Got to Give It Up’. Thicke and Williams preemptively applied to the court for a declaratory judgment that no copyright infringement had occurred, as they had only evoked the feel of ‘Got to Give It Up’ and not actually copied any of the protectable elements constituting Gaye’s song. They claimed homage and the evocation of a ‘feel’ not plagiarism, citing that despite certain audible similarities pertaining to the choice of sounds and groove, the two tracks are in different keys, do not share the same melody or chord progression. In a surprise verdict, a jury found Thicke and Williams liable for copyright infringement and awarded damages of $7.3 million. The decision has been heavily criticised by copyright scholars and lawyers. Gordon argued that the jury had been misled on a point of law and DiCola stated “he knew of several entertainment lawyers who witnessed the trial and thought the Gayes would lose.” New York University Law Professor, Christopher Sprigman opines that the verdict gives the impression that, “Marvin Gaye owns a certain style. Did the first impressionist own impressionism? This is not what copyright law is supposed to be” (Fuchs). Fortunately, decisions of the District Courts are not precedent setting and whilst Thicke and Williams have committed to appeal the verdict (Christman), it is a troubling decision for two main reasons. First, that copyright law has become increasingly stringent with regards to re-use of works and examples of palpable inspiration or influence are apparently now actionable. Even if threats of legal action do not eventuate in court cases, the ‘Blurred Lines’ decision may provide enough uncertainty for copyright owners to leverage a financial shakedown in the form of an out-of-court settlement. This is not an isolated incident, and agreements (known as interpolation rights) for songwriting credits, royalties, and licensing are often quietly negotiated outside of the courtroom in cases where audible similarities and accidental appropriation exist (Aswad). The ‘Blurred Lines’ verdict reportedly influenced Mark Ronson’s decision to err on the side of caution and offer royalty payments to influential artists such as Trinidad James (Christman). According to their respective depositions, Thicke and Williams wanted to evoke the ‘feel’ of Marvin Gaye’s music in their own way and whilst no protectable elements were actually copied, the influence of Marvin Gaye was evident enough for a jury to find infringement. Second, just as troubling as this result is the fact that the current intellectual property climate provides enough confidence for a copyright owner to sue for the appropriation of a feel; as Williams and Thicke’s lawyers put it, “In reality, the Gaye defendants are claiming ownership of an entire genre” (Grow). Adult Wednesday Addams “They’re creepy and they’re kooky”, but The Addams Family are also copyrighted, which led to the takedown of comedian Melissa Hunter’s YouTube series, ‘Adult Wednesday Addams’ in April 2015. The series re-imagines original Addams Family character Wednesday Addams as an adult living in Los Angeles amongst “the culture of reality shows, kale smoothies, and hikes to the Hollywood sign” (Lanning). The series has been internationally acclaimed through outlets such as Marie Claire, People, Huffington Post, and BuzzFeed, but the Tee & Charles Addams Foundation, which owns the copyright in the Addams Family issued a takedown notice with which YouTube must comply under the ‘safe harbor’ provisions of the Digital Millennium Copyright Act 1998. Episodes are still available on YouTube via other uploaders, but Hunter’s own channel is no longer carrying the series (which ran for two seasons and two specials, totalling 15 fan-made episodes).  ‘Adult Wednesday Addams’ is a parody, a well-established fair use, but a combination of law and YouTube policy led to its takedown. Under the ‘safe harbor’ provisions of the Digital Millennium Copyright Act (DMCA) YouTube enjoys immunity from the infringing activities of its users providing it responds to copyright owners’ complaints in a timely fashion. Users on the receiving end of a takedown notice are able to challenge it using YouTube’s internal dispute resolution process by claiming fair use (amongst other options). The question of whether a use is fair, however, is referred back to the copyright owner. If an assertion of fair use is refuted, the user’s only options are to give in or seek a declaratory judgment in court, much like Thicke and Williams attempted with ‘Blurred Lines’. As pop-culture hacker Jonathan McIntosh discovered, this can be a drawn out, expensive and exasperating process (Collins 98–99). McIntosh mashed-up scenes culled from the ‘Buffy the Vampire Slayer’ series and ‘Twilight’ film to produce “a visual critique of gender roles and representations in modern pop culture vampire media.” Despite its extensive re-use of copyrighted material, ‘Buffy vs. Edward: Twilight Remixed’ should have been protected as a fair use. This did not stop ‘Twilight’ copyright owner Lionsgate from issuing not one, but two successive takedown notices for unauthorised use of the individual visual and audio tracks ripped from its intellectual property. Several months passed, YouTube’s dispute resolution process exhausted, and a law firm specialising in user-generated content and intellectual property rights was engaged before Lionsgate finally acquiesced and released its claim. Again, these are not isolated incidents. Adi Shankar’s popular Power Rangers fan-film was also on the receiving end of a takedown notice from Saban Entertainment, copyright owners of the Power Rangers franchise. The cases point to the prevalence of Lessig’s permission culture in which every use must be licensed, even if it is an established and protected fair use. In McIntosh’s case, Lionsgate wanted to leverage the popularity of his mash-up and monetise it by placing advertising on the YouTube clip. (Monetisation is one of the options available to copyright owners when infringement is alleged on videos uploaded to YouTube.) McIntosh refused to allow advertising, relying on fair use to dissuade Lionsgate’s claims of ownership over the mash-up. Reportedly, this underpinned Lionsgate’s decision to seek takedown (Collins 99). The takedown of ‘Adult Wednesday Addams’ occurred within a fortnight of writing this paper and as yet the rationale behind the action is unknown, but speculation that a deal negotiated in 2013 with MGM to create an animated Addams Family movie suggests that the Tee & Charles Addams Foundation want to regulate the presence and usage of the characters. In the absence of any news of further developments of an Addams Family revival, one commentator notes that “for iconic characters who are not readapted to the silver screen often, YouTube is vital in keeping those characters—such as Wednesday—relevant and relatable to the younger generation” (Lanning). Speaking of his own Power Rangers fan-film, Adi Shankar plaintively argues that “As children our retinas are burned with iconic images and as we grow older these images come to represent crucial moments within the trajectories of our own lives [...]. Films like my Power/Rangers “Bootleg” are vital expressions of creativity in our troubled world. If we suppress this creativity and become passive participants in the consumption of the culture we live in, we implicitly allow a dangerous precedent to be set for the future of the internet.” So, What about Fair Use? Ostensibly, many forms of re-imagining are fair uses of copyright works. The doctrine of fair use is supposed to mitigate the exclusivity of copyright and allow works to be re-used in certain circumstances, especially where the new work promotes the goals of copyright (Patry, The Fair Use Privilege in Copyright Law 4–5). This applies even when the re-use is commercial; as Kaplan states, “parody may quite legitimately aim at garrotting the original destroying it commercially as well as artistically” (69). Fair use is codified into section 107 of the Copyright Act 1976 and is designed to recognise the discursive benefits of re-using copyrighted works, but the boundaries between fair use and infringement are often blurry at best (Madison 1577). The Copyright Act affords rightsholders with an exclusive right to create derivative works whilst also providing a defence of fair use for other authors seeking to use the same protected work. This apparent legal contradiction can create some tension between copyright owners and authors of transformative works. As Judge Easterbrook put it in Kienitz v Sconnie Nation: “To say that a new use transforms the work is precisely to say that it is derivative and thus, one might suppose, protected under §106(2)” (4). The success of a fair use defence is far from guaranteed. For example, Los Angeles News Service owns the copyright in the footage capturing Reginald Denny’s beating by the ‘L.A. Four’ from 1992. The News Service successfully defeated a claim of fair use when KAL-TV and Reuters re-broadcast portions of the footage without authorisation, yet when Court TV used the same clip no infringement was found and the fair use defence was upheld. Thus, fair use can be unpredictable (Heins and Beckles 10–11) and costly for unsuccessful defendants. As a result, those using copyrighted works are often reluctant to rely on it (Lessig 95–99) and opt to either remove the offending copyrighted portion or pay a licensing fee. Either result reinforces the permission culture identified by Lessig and empowers copyright owners to effectively police creative expression. In the context of YouTube and user-generated content the effects of a permission culture are exacerbated through technological surveillance in the form of YouTube’s Content ID system and a dispute resolution process that leaves fair use determination in the hands of complainant copyright owners. In March 2015 a District Court found that ‘3C’, a play parodying ABC television series ‘Three’s Company’ (which ran from 1977 to 1984 and was itself a derivative of the British sitcom, ‘Man about the House’) was protected as a fair use. Playwright David Adjmi responded to copyright owner DLT Entertainment’s cease-and-desist letter by seeking a declaratory judgment in favour of fair use as his production commented on “ways the television show presented and reinforced stereotypes about gender, age and sexual orientation” (Gardner). In her ruling, Judge Preska noted that copyright: is designed to foster creativity. It does so by, in effect, managing monopolies in knowledge: granting one in original work to reward its creator, but ensuring it is limited, temporary, and does not operate as a moratorium on certain ideas. The law is agnostic between creators and infringers, favoring only creativity and the harvest of knowledge. Here, ‘further protection against parody does little to promote creativity, but it places substantial inhibition upon the creativity of authors adept at using parody.’The decision here is encouraging and demonstrates that copyright law remains porous enough to allow re-imaginings, but also highlights that cases have to get to court to be heard, and of course, as Thicke and Williams discovered, nothing is clear cut where copyright is concerned. Adjmi’s case is not dissimilar to the position that Melissa Hunter finds herself in with ‘Adult Wednesday Addams’; but whilst both involve parodies of television series that are no longer produced, Melissa Hunter’s series was distributed online and as a result has become embroiled in YouTube’s dispute resolution system. As Jonathan McIntosh’s experiences with Lionsgate testify, resolution can take several months, and in the meantime the web series is unavailable through Hunter’s official channel and disrupting her ability to self-market her work. This suggests that the benefits of new distribution channels such as YouTube are marred by vulnerabilities sparked by a copyright regime that gives rightholders too much latitude in the digital environment and not enough accountability for frivolous actions. Conclusion In the late 1990s and early 2000s a body of scholarship (much of which has been mentioned above) emerged to critique the current state and future directions of copyright law. The broad message was simple: strict copyright laws chill creativity and innovation as new technologies simultaneously make it easier than ever to create and distribute. This claim remains as valid today, if not exacerbated (primarily in the digital environment) by monetisation opportunities and automated systems like YouTube’s Content ID. The relationships between authorship and ownership are complex. The balance of competing interests is difficult to regulate, yet copyright expansion seems assured and fair use increasingly marginalised. In instances like ‘Adult Wednesday Addams’ there exists an overwhelming presumption in favour of the copyright owner, whereas in the case of ‘Blurred Lines’ the problem seems to be more with court processes that allow a jury to reach a verdict based on intuition rather than musicological expertise (Fuchs). Digital technologies, tools of production, and internet-based distribution offer so much promise for creative expression that we deserve a copyright system that competently balances the competing interests of monopoly rights holders and the wider needs of society (Young 46). After all, as Paul Goldstein notes, copyright law occupies a “special place in ordering a nation’s culture” (35). Whilst rights are afforded under the law, obligations are also due because judicial and rightsholder decisions about copyright involve: “not pure economic regulation, but regulation of expression, and what may count as rational where economic regulation is at issue is not necessarily rational where we focus on expression—in a Nation constitutionally dedicated to the free dissemination of speech, information, learning and culture” (Eldred v. Ashcroft 3).  ReferencesAswad, Jem. “Our Fantasy Sam Smith/Tom Petty Copyright-Infringement Grammy Medley: ‘Stay with Me’, ‘My Sweet Lord’ and More.” Billboard. n.p., 30 Jan. 2015. 20 Apr. 2015 ‹http://www.billboard.com/articles/events/grammys-2015/6457978/sam-smith-tom-petty-grammy-medley-mashups›. Bettig, Ronald. Copyrighting Culture: The Political Economy of Intellectual Property. Boulder, CO: Westview Press, 1996.Bridgeport Music, Inc., et al. v. Dimension Films et al. 383 F. 3d 400 (6th Cir. 2004).Christman, Ed. “Inside the New Royalty Split for ‘Uptown Funk’: Who Gets Paid What.” Billboard. n.p., 4 May 2015. 7 May 2015 ‹http://www.billboard.com/articles/business/6553861/uptown-funk-royalties-who-gets-paid›. Collins, Steve. “YouTube and Limitations of Fair Use in Remix Videos.” Journal of Media Practice 15.2 (2014): 92–106.Coombe, Rosemary. The Cultural Life of Intellectual Properties. Durham, NC: Duke UP, 1998.Copyright Act 1790 (US).Copyright Act 1870 (US).Copyright Act 1909 (US).Copyright Act 1976 (US).Diakopoulos, Nicholas, Kurt Luther, Yevgeniy “Eugene” Medynskiy, and Irfan Essa. “The Evolution of Authorship in a Remix Society.” Proceedings of the Eighteenth Conference on Hypertext and Hypermedia. HT ‘07, Manchester. June 2007. 19 May 2015 ‹http://www.deakondesign.com/wp-content/uploads/2007/06/hts5-diakopoulos.pdf›. Eco, Umberto. “Towards a Semiotic Enquiry into the Television Message.” Communication Studies: An Introductory Reader. Eds. John Corner and Jeremy Hawthorn. London: Edward Arnold, 1965. 131–50. Eldred v. Ashcroft [2003] 537 US 186; Justice Breyer dissenting. Fuchs, Erin. “That Huge ‘Blurred Lines’ Verdict Came Out of Left Field and Sets a Terrible Precedent.” Business Insider. n.p., 12 Mar. 2015. 7 Apr. 2015 ‹http://www.businessinsider.com.au/copyright-lawyers-are-shocked-by-the-robin-thicke-blurred-lines-verdict-2015-3›. Gardner, Eriq. “Judge Rules ‘Three's Company’ Parody Play to Be Fair Use.” The Hollywood Reporter. n.p., 31 Mar. 2015. 5 Apr. 2015 ‹http://www.hollywoodreporter.com/thr-esq/judge-rules-threes-company-parody-785689›. Goldstein, Paul. Copyright’s Highway: The Law and Lore of Copyrights from Gutenberg to the Celestial Jukebox. New York: Hill and Wang, 1994. Gordon, Wendy. “How the Jury in the ‘Blurred Lines’ Case Was Misled.” The Conversation. n.p., 17 Mar. 2015. 5 Apr. 2015 ‹http://theconversation.com/how-the-jury-in-the-blurred-lines-case-was-misled-38751›. Grow, Kory. “Robin Thicke, Pharrell Lose Multi-Million Dollar ‘Blurred Lines’ Lawsuit.” Rolling Stone. n.p., 10 Mar. 2015. 5 Apr. 2015 ‹http://www.rollingstone.com/music/news/robin-thicke-and-pharrell-lose-blurred-lines-lawsuit-20150310›. Heins, Marjorie, and Tricia Beckles. Will Fair Use Survive?: Free Expression in the Age of Copyright Control: A Public Policy Report. New York: Brennan Center for Justice at NYU School of Law, 2005.Hunter, Melissa. “Adult Wednesday Addams.” YouTube.Kaplan, Benjamin. An Unhurried View of Copyright. New York: Columbia UP, 1967.Kienitz v. Sconnie Nation 766 F.3d 756 (7th Cir. 2014).Lanning, Carly. “Copyright Claim Yanks ‘Adult Wednesday Addams’ from YouTube.” Dailydot. n.p., 21 Apr. 2015. 28 Apr. 2015 ‹http://www.dailydot.com/entertainment/adult-wednesday-addams-copyright-claim/›. Lessig, Lawrence. Free Culture. New York: The Penguin Press, 2004. Madison, Michael. “A Pattern-Oriented Approach to Fair Use.” William & Mary Law Review 45.4 (2004): 1525-690. McKenzie. “Adi Shankar’s Power/Rangers Taken Down on YouTube.” Theyoutubebuzz. n.p., 2 Mar. 2015. 26 Apr. 2015 ‹http://theyoutubebuzz.com/site/adi-shankars-powerrangers-taken-down-on-youtube/›.McLeod, Kembrew. Freedom of Expression: Overzealous Copyright Bozos and Other Enemies of Creativity. New York: Doubleday, 2005.Morris, Sue. “Co-Creative Media: Online Multiplayer Computer Game Culture.” Scan: Journal of Media Arts Culture 1.1 (2004): n.p. 24 Apr. 2015. Negativland. Fair Use: The Story of the Letter U and the Numeral 2. Concord: Seeland, 1995.Netanel, Neil. “Copyright in a Democratic Civil Society.” Yale Law Journal 106 (1996): 283–388.———. Copyright’s Paradox. Oxford: Oxford UP, 2008. Patry, William. The Fair Use Privilege in Copyright Law. Washington DC: Bureau of National Affairs, 1985.———. Copyright Law and Practice Volume II. United States: The Bureau of National Affairs, 1994.———. How to Fix Copyright. New York: Oxford UP, 2011.Patterson, Lyman Ray, and Stanley Lindberg. The Nature of Copyright: A Law of Users’ Rights. Georgia: U of Georgia P, 1991.Samuelson, Pamela. “The Quest for a Sound Conception of Copyright’s Derivative Work Right.” Georgetown Law Journal 101.6 (2013): 1505–564.Suzor, Nicolas. “Transformative Use of Copyrighted Material.” M.Res. thesis Queensland University of Technology, 2006. 11 Apr. 2015 ‹http://eprints.qut.edu.au/16226/1/Nicolas_Suzor_Thesis.pdf›.Thicke, Robin, Pharrell Williams, and Clifford Harris. Blurred Lines. Interscope, 2013.Waldron, Jeremy. “From Authors to Copiers: Individual Rights and Social Values in Intellectual Property.” Chicago-Kent Law Review 68 (1993): 842.Wu, Tim. “Harry Potter and the International Order of Copyright.” Slate. n.p., 27 Jun. 2003. 26 Apr. 2015 ‹http://www.slate.com/articles/news_and_politics/jurisprudence/2003/06/harry_potter_and_the_international_order_of_copyright.html›. Young, Sherman. “A Hack for the Encouragement of Learning.” Copyfight. Ed. Phillipa McGuinness. Sydney: U of New South Wales P, 2015. 35–48.

Abstract: As the single most successful social-networking Website to date, Facebook has caused a shift in both practice and perception of online socialisation, and its relationship to the offline world. While not the first online social networking service, Facebook’s user base dwarfs its nearest competitors. Mark Zuckerberg’s creation boasts more than 750 million users (Facebook). The currently ailing MySpace claimed a ceiling of 100 million users in 2006 (Cashmore). Further, the accuracy of this number has been contested due to a high proportion of fake or inactive accounts. Facebook by contrast, claims 50% of its user base logs in at least once a day (Facebook). The popular and mainstream uptake of Facebook has shifted social use of the Internet from various and fragmented niche groups towards a common hub or portal around which much everyday Internet use is centred. The implications are many, but this paper will focus on the progress what Mimi Marinucci terms the “Facebook effect” (70) and the evolution of lists as a filtering mechanism representing one’s social zones within Facebook. This is in part inspired by the launch of Google’s new social networking service Google+ which includes “circles” as a fundamental design feature for sorting contacts. Circles are an acknowledgement of the shortcomings of a single, unified friends list that defines the Facebook experience. These lists and circles are both manifestations of the same essential concept: our social lives are, in fact, divided into various zones not defined by an online/offline dichotomy, by fantasy role-play, deviant sexual practices, or other marginal or minority interests. What the lists and circles demonstrate is that even very common, mainstream people occupy different roles in everyday life, and that to be effective social tools, social networking sites must grant users control over their various identities and over who knows what about them. Even so, the very nature of computer-based social tools lead to problematic definitions of identities and relationships using discreet terms, in contrast to more fluid, performative constructions of an individual and their relations to others. Building the Monolith In 1995, Sherry Turkle wrote that “the Internet has become a significant social laboratory for experimenting with the constructions and reconstructions of self that characterize postmodern life” (180). Turkle describes the various deliberate acts of personnae creation possible online in contrast to earlier constraints placed upon the “cycling through different identities” (179). In the past, Turkle argues, “lifelong involvement with families and communities kept such cycling through under fairly stringent control” (180). In effect, Turkle was documenting the proliferation of identity games early adopters of Internet technologies played through various means. Much of what Turkle focused on were MUDs (Multi-User Dungeons) and MOOs (MUD Object Oriented), explicit play-spaces that encouraged identity-play of various kinds. Her contemporary Howard Rheingold focused on what may be described as the more “true to life” communities of the WELL (Whole Earth ‘Lectronic Link) (1–38). In particular, Rheingold explored a community established around the shared experience of parenting, especially of young children. While that community was not explicitly built on the notion of role-play, the parental identity was an important quality of community members. Unlike contemporary social media networks, these early communities were built on discreet platforms. MUDs, MOOs, Bulletin Board Systems, UseNet Groups and other early Internet communication platforms were generally hosted independently of one another, and even had to be dialled into via modem separately in some cases (such as the WELL). The Internet was a truly disparate entity in 1995. The discreetness of each community supported the cordoning off of individual roles or identities between them. Thus, an individual could quite easily be “Pete” a member of the parental WELL group and “Gorak the Destroyer,” a role-player on a fantasy MUD without the two roles ever being associated with each other. As Turkle points out, even within each MUD ample opportunity existed to play multiple characters (183–192). With only a screen name and associated description to identify an individual within the MUD environment, nothing technical existed to connect one player’s multiple identities, even within the same community. As the Internet has matured, however, the tendency has been shifting towards monolithic hubs, a notion of collecting all of  “the Internet” together. From a purely technical and operational perspective, this has led to the emergence of the ISP (Internet service provider). Users can make a connection to one point, and then be connected to everything “on the Net” instead of individually dialling into servers and services one at a time as was the case in the early 1980s with companies such as Prodigy, the Source, CompuServe, and America On-Line (AOL). The early information service providers were largely walled gardens. A CompuServe user could only access information on the CompuServe network. Eventually the Internet became the network of choice and services migrated to it. Standards such as HTTP for Web page delivery and SMTP for email became established and dominate the Internet today. Technically, this has made the Internet much easier to use. The services that have developed on this more rationalised and unified platform have also tended toward monolithic, centralised architectures, despite the Internet’s apparent fundamental lack of a hierarchy. As the Internet replaced the closed networks, the wider Web of HTTP pages, forums, mailing lists and other forms of Internet communication and community thrived. Perhaps they required slightly more technological savvy than the carefully designed experience of walled-garden ISPs such as AOL, but these fora and IRC (Internet Relay Chat) rooms still provided the discreet environments within which to role-play. An individual could hold dozens of login names to as many different communities. These various niches could be simply hobby sites and forums where a user would deploy their identity as model train enthusiast, musician, or pet owner. They could also be explicitly about role-play, continuing the tradition of MUDs and MOOs into the new millennium. Pseudo- and polynymity were still very much part of the Internet experience. Even into the early parts of the so-called Web 2.0 explosion of more interactive Websites which allowed for easier dialog between site owner and viewer, a given identity would be very much tied to a single site, blog or even individual comments. There was no “single sign on” to link my thread from a music forum to the comments I made on a videogame blog to my aquarium photos at an image gallery site. Today, Facebook and Google, among others, seek to change all that. The Facebook Effect Working from a psychological background Turkle explored the multiplicity of online identities as a valuable learning, even therapeutic, experience. She assessed the experiences of individuals who were coming to terms with aspects of their own personalities, from simple shyness to exploring their sexuality. In “You Can’t Front on Facebook,” Mimi Marinucci summarizes an analysis of online behaviour by another psychologist, John Suler (67–70). Suler observed an “online disinhibition effect” characterised by users’ tendency to express themselves more openly online than offline (321). Awareness of this effect was drawn (no pun intended) into popular culture by cartoonist Mike Krahulik’s protagonist John Gabriel. Although Krahulik’s summation is straight to the point, Suler offers a more considered explanation. There are six general reasons for the online disinhibition effect: being anonymous, being invisible, the communications being out of sync, the strange sensation that a virtual interlocutor is all in the mind of the user, the general sense that the online world simply is not real and the minimisation of status and authority (321–325). Of the six, the notion of anonymity is most problematic, as briefly explored above in the case of AOL. The role of pseudonymity has been explored in more detail in Ruch, and will be considered with regard to Facebook and Google+ below. The Facebook effect, Marinucci argues, mitigates all six of these issues. Though Marinucci explains the mitigation of each factor individually, her final conclusion is the most compelling reason: “Facebook often facilitates what is best described as an integration of identities, and this integration of identities in turn functions as something of an inhibiting factor” (73). Ruch identifies this phenomenon as the “aggregation of identities” (219). Similarly, Brady Robards observes that “social network sites such as MySpace and Facebook collapse the entire array of social relationships into just one category, that of ‘Friend’” (20). Unlike earlier community sites, Ruch notes “Facebook rejects both the mythical anonymity of the Internet, but also the actual pseudo- or polynonymous potential of the technologies” (219). Essentially, Facebook works to bring the offline social world online, along with all the conventional baggage that accompanies the individual’s real-world social life. Facebook, and now Google+, present a hard, dichotomous approach to online identity: anonymous and authentic. Their socially networked individual is the “real” one, using a person’s given name, and bringing all (or as many as the sites can capture) their contacts from the offline world into the online one, regardless of context. The Facebook experience is one of “friending” everyone one has any social contact with into one homogeneous group. Not only is Facebook avoiding the multiple online identities that interested Turkle, but it is disregarding any multiplicity of identity anywhere, including any online/offline split. David Kirkpatrick reports Mark Zuckerberg’s rejection of this construction of identity is explained by his belief that “You have one identity … having two identities for yourself is an example of a lack of integrity” (199). Arguably, Zuckerberg’s calls for accountability through identity continue a perennial concern for anonymity online fuelled by “on the Internet no one knows you’re a dog” style moral panics. Over two decades ago Lindsy Van Gelder recounted the now infamous case of “Joan and Alex” (533) and Julian Dibbell recounted “a rape in cyberspace” (11). More recent anxieties concern the hacking escapades of Anonymous and LulzSec. Zuckerberg’s approach has been criticised by Christopher Poole, the founder of 4Chan—a bastion of Internet anonymity. During his keynote presentation at South by SouthWest 2011 Poole argued that Zuckerberg “equates anonymity with a lack of authenticity, almost a cowardice.” Yet in spite of these objections, Facebook has mainstream appeal. From a social constructivist perspective, this approach to identity would be satisfying the (perceived?) need for a mainstream, context-free, general social space online to cater for the hundreds of millions of people who now use the Internet. There is no specific, pre-defined reason to join Facebook in the way there is a particular reason to join a heavy metal music message board. Facebook is catering to the need to bring “real” social life online generally, with “real” in this case meaning “offline and pre-existing.” Very real risks of missing “real life” social events (engagements, new babies, party invitations etc) that were shared primarily via Facebook became salient to large groups of individuals not consciously concerned with some particular facet of identity performance. The commercial imperatives towards monolithic Internet and identity are obvious. Given that both Facebook and Google+ are in the business of facilitating the sale of advertising, their core business value is the demographic information they can sell to various companies for target advertising. Knowing a user’s individual identity and tastes is extremely important to those in the business of selling consumers what they currently want as well as predicting their future desires. The problem with this is the dawning realisation that even for the average person, role-playing is part of everyday life. We simply aren’t the same person in all contexts. None of the roles we play need to be particularly scandalous for this to be true, but we have different comfort zones with people that are fuelled by context. Suler proposes and Marinucci confirms that inhibition may be just as much part of our authentic self as the uninhibited expression experienced in more anonymous circumstances. Further, different contexts will inform what we inhibit and what we express. It is not as though there is a simple binary between two different groups and two different personal characteristics to oscillate between. The inhibited personnae one occupies at one’s grandmother’s home is a different inhibited self one plays at a job interview or in a heated discussion with faculty members at a university. One is politeness, the second professionalism, the third scholarly—yet they all restrain the individual in different ways. The Importance of Control over Circles Google+ is Google’s latest foray into the social networking arena. Its previous ventures Orkut and Google Buzz did not fare well, both were variously marred by legal issues concerning privacy, security, SPAM and hate groups. Buzz in particular fell afoul of associating Google accounts with users” real life identities, and (as noted earlier), all the baggage that comes with it. “One user blogged about how Buzz automatically added her abusive ex-boyfriend as a follower and exposed her communications with a current partner to him. Other bloggers commented that repressive governments in countries such as China or Iran could use Buzz to expose dissidents” (Novak). Google+ takes a different approach to its predecessors and its main rival, Facebook. Facebook allows for the organisation of “friends” into lists. Individuals can span more than one list. This is an exercise analogous to what Erving Goffman refers to as “audience segregation” (139). According to the site’s own statistics the average Facebook user has 130 friends, we anticipate it would be time-consuming to organise one’s friends according to real life social contexts. Yet without such organisation, Facebook overlooks the social structures and concomitant behaviours inherent in everyday life. Even broad groups offer little assistance. For example, an academic’s “Work People” list may include the Head of Department as well as numerous other lecturers with whom a workspace is shared. There are things one might share with immediate colleagues that should not be shared with the Head of Department. As Goffman states, “when audience segregation fails and an outsider happens upon a performance that was not meant for him, difficult problems in impression management arise” (139). By homogenising “friends” and social contexts users are either inhibited or run the risk of some future awkward encounters. Google+ utilises “circles” as its method for organising contacts. The graphical user interface is intuitive, facilitated by an easy drag and drop function. Use of “circles” already exists in the vocabulary used to describe our social structures. “List” by contrast reduces the subject matter to simple data. The utility of Facebook’s friends lists is hindered by usability issues—an unintuitive and convoluted process that was added to Facebook well after its launch, perhaps a reaction to privacy concerns rather than a genuine attempt to emulate social organisation. For a cogent breakdown of these technical and design problems see Augusto Sellhorn. Organising friends into lists is a function offered by Facebook, but Google+ takes a different approach: organising friends in circles is a central feature; the whole experience is centred around attempting to mirror the social relations of real life. Google’s promotional video explains the centrality of emulating “real life relationships” (Google). Effectively, Facebook and Google+ have adopted two different systemic approaches to dealing with the same issue. Facebook places the burden of organising a homogeneous mass of “friends” into lists on the user as an afterthought of connecting with another user. In contrast, Google+ builds organisation into the act of connecting. Whilst Google+’s approach is more intuitive and designed to facilitate social networking that more accurately reflects how real life social relationships are structured, it suffers from forcing direct correlation between an account and the account holder. That is, use of Google+ mandates bringing online the offline. Google+ operates a real names policy and on the weekend of 23 July 2011 suspended a number of accounts for violation of Google’s Community Standards. A suspension notice posted by Violet Blue reads: “After reviewing your profile, we determined the name you provided violates our Community Standards.” Open Source technologist Kirrily Robert polled 119 Google+ users about their experiences with the real names policy. The results posted to her on blog reveal that users desire pseudonymity, many for reasons of privacy and/or safety rather than the lack of integrity thought by Zuckerberg. boyd argues that Google’s real names policy is an abuse of power and poses danger to those users employing “nicks” for reasons including being a government employment or the victim of stalking, rape or domestic abuse. A comprehensive list of those at risk has been posted to the Geek Feminism Wiki (ironically, the Wiki utilises “Connect”, Facebook’s attempt at a single sign on solution for the Web that connects users’ movements with their Facebook profile). Facebook has a culture of real names stemming from its early adopters drawn from trusted communities, and this culture became a norm for that service (boyd). But as boyd also points out, “[r]eal names are by no means universal on Facebook.” Google+ demands real names, a demand justified by rhetoric of designing a social networking system that is more like real life. “Real”, in this case, is represented by one’s given name—irrespective of the authenticity of one’s pseudonym or the complications and dangers of using one’s given name. Conclusion There is a multiplicity of issues concerning social networks and identities, privacy and safety. This paper has outlined the challenges involved in moving real life to the online environment and the contests in trying to designate zones of social context. Where some earlier research into the social Internet has had a positive (even utopian) feel, the contemporary Internet is increasingly influenced by powerful and competing corporations. As a result, the experience of the Internet is not necessarily as flexible as Turkle or Rheingold might have envisioned. Rather than conducting identity experimentation or exercising multiple personnae, we are increasingly obligated to perform identity as it is defined by the monolithic service providers such as Facebook and Google+. This is not purely an indictment of Facebook or Google’s corporate drive, though they are obviously implicated, but has as much to do with the new social practice of “being online.” So, while there are myriad benefits to participating in this new social context, as Poole noted, the “cost of failure is really high when you’re contributing as yourself.” Areas for further exploration include the implications of Facebook positioning itself as a general-purpose user authentication tool whereby users can log into a wide array of Websites using their Facebook credentials. If Google were to take a similar action the implications would be even more convoluted, given the range of other services Google offers, from GMail to the Google Checkout payment service. While the monolithic centralisation of these services will have obvious benefits, there will be many more subtle problems which must be addressed. References Blue, Violet. “Google Plus Deleting Accounts en Masse: No Clear Answers.” zdnet.com (2011). 10 Aug. 2011 ‹http://www.zdnet.com/blog/violetblue/google-plus-deleting-accounts-en-masse-no-clear-answers/56›. boyd, danah. “Real Names Policies Are an Abuse of Power.” zephoria.org (2011). 10 Aug. 2011 ‹http://www.zephoria.org/thoughts/archives/2011/08/04/real-names.html›. Cashmore, Pete. “MySpace Hits 100 Million Accounts.” mashable.com (2006). 10 Aug. 2011 ‹http://mashable.com/2006/08/09/myspace-hits-100-million-accounts›. Dibb le, Julian. My Tiny Life: Crime and Passion in a Virtual World. New York: Henry Holt & Company, 1998. Facebook. “Fact Sheet.” Facebook (2011). 10 Aug. 2011 ‹http://www.facebook.com/press/info.php?statistic›. Geek Feminism Wiki. “Who Is Harmed by a Real Names Policy?” 2011. 10 Aug. 2011 ‹http://geekfeminism.wikia.com/wiki/Who_is_harmed_by_a_%22Real_Names%22_policy› Goffman, Erving. The Presentation of Self in Everyday Life. London: Penguin, 1959. Google. “The Google+ Project: Explore Circles.” Youtube.com (2011). 10 Aug. 2011 ‹http://www.youtube.com/watch?v=ocPeAdpe_A8›. Kirkpatrick, David. The Facebook Effect. New York: Simon & Schuster, 2010. Marinucci, Mimi. “You Can’t Front on Facebook.” Facebook and Philosophy. Ed. Dylan Wittkower. Chicago & La Salle, Illinois: Open Court, 2010. 65–74. Novak, Peter. “Privacy Commissioner Reviewing Google Buzz.” CBC News: Technology and Science (2010). 10 Aug. 2011 ‹http://www.cbc.ca/news/technology/story/2010/02/16/google-buzz-privacy.html›. Poole, Christopher. Keynote presentation. South by SouthWest. Texas, Austin, 2011. Robards, Brady. “Negotiating Identity and Integrity on Social Network Sites for Educators.” International Journal for Educational Integrity 6.2 (2010): 19–23. Robert, Kirrily. “Preliminary Results of My Survey of Suspended Google Accounts.” 2011. 10 Aug. 2011 ‹http://infotrope.net/2011/07/25/preliminary-results-of-my-survey-of-suspended-google-accounts/›. Rheingold, Howard. The Virtual Community: Homesteading on the Electronic Frontier. New York: Harper Perennial, 1993. Ruch, Adam. “The Decline of Pseudonymity.” Posthumanity. Eds. Adam Ruch and Ewan Kirkland. Oxford: Inter-Disciplinary.net Press, 2010: 211–220. Sellhorn, Augusto. “Facebook Friend Lists Suck When Compared to Google+ Circles.” sellmic.com (2011). 10 Aug. 2011 ‹http://sellmic.com/blog/2011/07/01/facebook-friend-lists-suck-when-compared-to-googleplus-circles›. Suler, John. “The Online Disinhibition Effect.” CyberPsychology and Behavior 7 (2004): 321–326. Turkle, Sherry. Life on the Screen: Identity in the Age of the Internet. New York: Simon & Schuster, 1995. Van Gelder, Lindsy. “The Strange Case of the Electronic Lover.” Computerization and Controversy: Value Conflicts and Social Choices Ed. Rob Kling. New York: Academic Press, 1996: 533–46.