Originality and the Presumption of A Proprietary Authorial Impulse
Authors do not create works free from the works that came before them, i.e. the works and authors that influenced them. Thus, the notion that a word or an innovation is the property of an author is erroneous.
What if I told you that your concept of originality isn’t really your own, would you believe me? What if I told you that the concept of originality that you have — that most of us have today — is actually the concept of originality held by the bourgeois class of eighteenth-century England?
Despite the reality that “authorship” is a well understood and objective concept, our conceptions of authorship are subjective.[1] And wherever subjectivity is at play, then you can bet that culture and socio-economic status will influence it. The art that we engage with, the laws that we understand, our political outlooks, our educational backgrounds — All of these things converge to shape our ideas of authorship and, by proxy, our concepts of originality and creativity. Where subjectivity is concerned, one modern view of authorship and originality is that it is originary, i.e. that it comes solely from within the lone author. While the “modern myth of genuine authorship consists in individual acts of origination,”[2] the truth is, authorship, writing in particular, has always been an enterprise conceived collaboratively.
The presumption of a proprietary authorial impulse,[3] the notion that a word or an innovation is the property of an author/creative, is erroneous; and when we locate the accidents that often occur within the creative process, this concept becomes even more absurd. For instance, what if a song contains the sound of a microphone that accidentally dropped on the floor during a recording session. Does the proprietary authorial impulse take hold in this instance? Put another way, if a sample-based beatmaker (producer) samples this dropped-microphone sound — an action that was neither intended and a sound that was not meant to be musical — and transforms it into music, what do we say of the dropped-microphone sound from the original recording? Can it be argued that it’s the musical province of the copyright owner, now that the sample-based beatmaker (producer) has transformed it into music?
What we might do while sitting alone at our desks or at a table in Starbucks must not be confused with the idea that writing is inherently and necessarily a solitary, individual act.[4] Writers, like all creatives, do not exist in a void. Writers do not create works free from the works that came before them, i.e. the works and authors that influenced them. So whether a writer labors “alone” at his desk for hours or whether he writes on a laptop surrounded by patrons inside a crowded coffee house, he is always engaged in a collaborative process. Moreover, writing, like any other creative art form, is the craft of execution, a process through which multiple steps are taken and where ideas give way to new ideas. And it is impossible for ideas to emerge from nowhere. Ideas are the residue of all that we have consumed. How we shape these ideas, then, and how we express these ideas in new ways, is the basis of originality.
As the myth of the author as the sole creator of original works further dissolves, brought on especially by technology’s impact on writing and music and other art forms, it becomes clear that
attitudes are shifting more favorably towards the art of sampling. Certainly, proponents of the sample clearance agenda recognize this, which is why they’ve been pushing hard to normalize the idea of sample clearance for all samples. In doing so, they want to bring all samples — even the activity of sampling itself — behind the wall of clearance. In the paradigm where the public believes that all samples are inherently illegal, the public is led to believe that all samples must be cleared. And in this case then, the public is made to believe that sound recordings are treated differently from other copyrightable material. The notion being that borrowings (samples) from a sound recording are different from, let’s say, borrowings (samples) from a literary work. As such, the illogic follows that all samples from sound recordings always require clearance, whereas samples of literary works do not always require clearance. But this is not how copyright law works. Copyright law, properly understood, applies equally to all categories of subject matter. Which means the de minimis and fair use doctrines apply to literary works just as they do to sound recordings. But the sample clearance regime prefers that the public is not aware of this fact.
Notes:
1. Thomas Pfau, “The Pragmatics of Genre,” in The Construction of Authorship (Durham and London 1994), 134.
2. Martha Woodmansee “On the Author Effect: Recovering Collectivity,” in The Construction of Authorship (Durham and London 1994), 18, 21.
3. Ibid, 23.
4. Woodmansee, 25-26. Woodmansee has noted that: “electronic technology is hastening the demise of the illusion that writing is solitary and originary…the computer is dissolving the boundaries essential to the survival of our modern fiction of the author as the sole creator of unique, original works…. Readers may even incorporate part of the original message in the reply, blurring the distinction between their own text and the text to which they are responding.” This description applies especially to social media platforms like Twitter and Facebook. “There is also little respect for the conventions of the prior medium of print. Subscribers often type newspaper articles or excerpts from books into their replies without concern for copyright.” Woodmansee further notes that “[i]n a variety of ways, electronic communication seems to be assaulting the distinction between mine and thine that the modern author construct was designed to enforce…the boundaries between author and reader disintegrate.”
