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e unclear. It never pays to do anything except pay for the right to create,
and hence only those who can pay are allowed to create. As was the
case in the Soviet Union, though for very different reasons, we will begin
to see a world of underground art—not because the message is necessarily
political, or because the subject is controversial, but because the
very act of creating the art is legally fraught. Already, exhibits of “illegal
art” tour the United States. 3 In what does their “illegality” consist?
In the act of mixing the culture around us with an expression that is
critical or reflective.
Part of the reason for this fear of illegality has to do with the changing
law. I described that change in detail in chapter 10. But an even
bigger part has to do with the increasing ease with which infractions
can be tracked. As users of file-sharing systems discovered in 2002, it
is a trivial matter for copyright owners to get courts to order Internet
service providers to reveal who has what content. It is as if your cassette
tape player transmitted a list of the songs that you played in the privacy
of your own home that anyone could tune into for whatever reason
they chose.
Never in our history has a painter had to worry about whether
his painting infringed on someone else’s work; but the modern-day
painter, using the tools of Photoshop, sharing content on the Web,
must worry all the time. Images are all around, but the only safe images
to use in the act of creation are those purchased from Corbis or another
image farm. And in purchasing, censoring happens. There is a free
market in pencils; we needn’t worry about its effect on creativity. But
there is a highly regulated, monopolized market in cultural icons; the
right to cultivate and transform them is not similarly free.
Lawyers rarely see this because lawyers are rarely empirical. As I
described in chapter 7, in response to the story about documentary
filmmaker Jon Else, I have been lectured again and again by lawyers
who insist Else’s use was fair use, and hence I am wrong to say that the
law regulates such a use.
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