"Art, Civic Life, and Public Discourse," Keynote Address by Jonathan Fanton at the Annual Meeting of the Illinois Arts Alliance
July 20, 2004 | Speech

Good afternoon. It is a special pleasure and honor to attend the annual meeting of the Illinois Arts Alliance and to learn more about your work. I am impressed by what I see: a vibrant and strong organization with a dedicated staff and leadership doing powerful and essential work on behalf of the arts.

We share a deep commitment to defending artistic freedom and nourishing creative opportunity. The Alliance had one of its early defining moments as a powerful advocate for artistic freedom, publicly supporting student artists at the School of the Art Institute and their right to mount a controversial exhibit, "What is the Proper Way to Display a Flag?" For twenty-two years, you have been a powerful and positive voice for the arts and culture in our state, nurturing organizations large and small, established and emerging.

I also had a moment with the National Endowment for the Arts as President of the New School. In 1989, I refused to sign the condition attached to an N.E.A. challenge grant that contained the language of the infamous Helms amendment and its so-called "decency" provisions.

Our grant was to bring a sculptor, Martin Puryear, together with a landscape architect, Michael Van Valkenburgh, to redesign the New School's central courtyard. There was nothing controversial about that. But to get the grant we would have had to acknowledge the obscenity provision and submit the work to the values-test the N.E.A. required. In our view, the conditions were an open invitation to government officials to exercise censorship. And so, as a matter of principle, we could not consent to a requirement we considered unconstitutional. The New School sued the N.E.A. in federal court in 1990, forcing it to drop the odious language that threatened to chill artistic expression.

As a long time University President, I endured plenty of protests—often directed at me. But that moment unified a university that included the Parsons School of Design, Mannes College of Music, a jazz and contemporary music program, The Actor's Studio Drama School, and a master's program in creative writing. Our stand would have pleased Thomas Hart Benton, Jose Clemente Orozco, Berenice Abbott, Martha Graham and other leading artists who taught at the New School over the years.

I indulge in this autobiographical moment to make two points. First, I came to MacArthur's deep and abiding commitment to the arts naturally—strengthening the arts was the defining accomplishment of my New School presidency. And second, our society cannot take artistic freedom or funding for granted: we must speak out for both—vigilant to repel overt and covert threats; active to counter underappreciation; and bold to advocate generous financial support.

My remarks this afternoon come in two parts: some comments about MacArthur's current work and then an exploration of a new threat to creativity that we need to understand and resist. It has to do with changes in the copyright laws that constrain new artistic possibilities opened up by digital technology. I am not an expert on the topic and am just beginning to learn, so I will only open a conversation I think the artistic world should be having. I will look forward to your questions and comments.

Most people know MacArthur locally for our support of arts and cultural institutions; for our Fellows program—the so-called genius awards; or for our support of National Public Radio and public television programs like Bill Moyers NOW or Frontline.

But MacArthur does much more both domestically and internationally, making nearly $200 million in grants and low interest loans annually. We work in 65 countries and maintain offices in Russia, Nigeria, India, and Mexico. Our international program focuses on biodiversity conservation and sustainable development; international peace and security; population and reproductive health; human rights and the creation of an international system of justice. Our domestic grantmaking has a long-standing concern for building healthy urban neighborhoods, creating and preserving affordable housing, and increasing access to capital through community development financial institutions. We also address system reform in public education, mental health, juvenile justice and regional policy.

Most of our national work has a strong Chicago presence—we are investing in comprehensive neighborhood improvement in half of Chicago's high poverty neighborhoods. We have been a long-time supporter of public school reform, and we have invested significantly in Mayor Daley's bold plan to replace public housing ghettos with new mixed-income communities.

But in our 26-year history, the largest and most consistent giving has been to arts and cultural institutions.

The MacArthur Foundation currently supports 165 arts and culture organizations in the Chicago region, large ones directly and smaller ones through MacArthur money that is re-granted by our partners, the Richard H. Driehaus Foundation and the Prince Charitable Trusts. Our commitment is deep and broad: from the Museums in the Park to local arts groups in Humboldt Park, our support runs throughout the city, in many neighborhoods.

Last year, to mark our 25th anniversary, MacArthur gave $22 million in special capital grants to 41 local arts and cultural organizations, part of a five-year, $50 million commitment to Chicago institutions that includes general operating support. Early in my tenure at MacArthur, a meeting I had with Alene Valkanas and others convinced me that general support deserved an important place in our grantmaking—as she said earlier, it is a testimony to the profound confidence we have in Chicago's arts and cultural institutions.

Deep as it is, our interest in the arts goes beyond institutional citizenship, beyond the economic stimulus the arts bring to neighborhood improvement, and even beyond their critical role in bridging divides and forging a common identity that celebrates our diversity. We see arts and culture as integral to everything we do worldwide—a powerful statement of our values, but also a practical partner in advancing our mission to foster lasting improvement in the human condition.

The arts deepen our reflection on the human spirit, extend our capacity to comprehend the lives of others, allow us to imagine a more just and humane world at peace. Through their diversity of feeling, their variety of form, their multiplicity of inspiration, the arts make our culture richer and more reflective.

Without these ingredients of tolerance and truth, democracy cannot prosper here, or anywhere. For the arts are capable of raising our awareness and commanding our care, of producing a citizenry that is better able to make decisions on matters of public policy and more ready to act on problems of grave concern to our humanity.

Let me give three examples of how the arts are vitally connected to other issues we work on.

For months, two of our grantees, Human Rights Watch and Physicians for Human Rights, had warned of abuses in American-controlled Iraqi prisons, but also in Guantanamo, in Afghanistan, and elsewhere around the world. But there is a work on display just upstairs—Hirsch Perlman's "A Layman's Guide to Interrogation Techniques and Practices: Preface to the Third Draft: Behavior Irreverent"—a photo and video-installation that calls into question the distinctions between structured interrogation, the tactics of "stress and duress," and torture. It was produced in 1993—eleven years ago—warning us of dangers on the horizon, but which has new resonance and urgency now.(1) A vibrant public sphere nurtured by the arts is critical to fighting such acts of coercion and cruelty, for understanding them and the culture of callousness from which they spring.

Arts and cultural institutions also help us understand, refine, and renew fundamental social values. An issue like biodiversity conservation is a good example. Twenty years ago, we were the first major private foundation to adopt biodiversity conservation as an area of grantmaking, helping make it a priority for governments, foreign aid agencies, and development banks by raising the public profile of conservation efforts.

Chicago's Field Museum has been an integral part of that work from the beginning—it is one of the world's greatest natural history museums, but also one of our finest institutions of ecological, scientific, and cultural research. Millions have toured its galleries, learning about the importance of biodiversity to the health of our planet. And Foundation support for Field Museum programs has contributed to the establishment of national parks and protected areas around the world, from Peru to China, from Ecuador to the Congo.

Or consider an issue like public housing. I spoke a moment ago about support for the Plan for Transformation—a once-in-a-century chance to build new neighborhoods on a significant scale in Chicago and help open opportunity for thousands of people.

Our support has included efforts to gather the facts about the relocation experience, including documentary filmmaking. One of the films we supported was called Legacy, made by local filmmaker, Tod Lending.(2) It showed the struggles of a Chicago family in public housing and, among other challenges, the difficulties faced by grandparents in poverty raising grandchildren. It inspired a group called Generations United to draft a bill: "Living Equitably: the Grandparents Aiding Children and Youth Act"—or LEGACY. Its provisions were signed into federal law last December. An extraordinary story about the effect of creative expression—raising awareness, commanding our care, motivating change.(3)

These are just a few examples of how our support for the arts and cultural institutions advances other parts of MacArthur's mission. But a Foundation like ours, with no clear restrictions, also feels an obligation to peer over the horizon to identify and explore issues not fully articulated. Support for the arts today is crucial, but we think it is equally important to think about the big forces and trends that might affect artistic and cultural expression tomorrow.

One of the issues we have identified is intellectual property, the subject of a new, multi-year initiative in our General Program. At first glance, the issue may seem complicated, technical, and perhaps not central to creativity. But the more I learn, the more convinced I am that the current struggle over intellectual property promises to be of even greater significance to artistic creativity, to freedom of expression, and to the health of our democracy than any amendment ever proposed by Jesse Helms.

Over the last few years, the Foundation has been exploring the impact of the digital "revolution" on society. We have been asking ourselves how we might help shape that revolution for the public good. We are interested in how new technology is changing the way that young people—and some of us not so young—acquire information, skills, and values. We wonder what implications this accelerating reality might have for public education, for the spread and credibility of information, for artistic innovation.

A new, technologically-savvy generation is growing up with different expectations about learning and interactivity, accompanied by new modes of creativity in the digital realm. "Mixing," "mashing," and "manipulating" are the transitive verbs this generation is already using to describe creative acts that employ digital tools to reconfigure sound, images, and words. It is an exciting time to think about new frontiers.

But even as technology changes the way we think, the way we share our thoughts, and the way we create, there are problems on the horizon, threats to what I think of as the infrastructure of our culture and our democracy—that complex web of political, social, and economic arrangements that undergirds the exchange of ideas, information, images, and emotions that make up our vibrant public sphere.

This is one reason why the Foundation has supported public radio and public television so strongly and so consistently. Those channels of distribution are essential to our public sphere if it is to remain "public" in any meaningful way, not merely dominated by commercial, private, or partisan interests. The balance is delicate. Commercial culture—books, television, film, music—is made up of private goods that are traded and sold and owned. But they are also public phenomena that nourish our national conversation.

However, recent legislation in Congress and legal action by the entertainment industry have produced changes to copyright law and the regulation of intellectual property that restrict access to these sources of public culture—thereby threatening to diminish individual creativity and collective innovation. Where a younger generation sees artistry in mixing, sampling, and citation, those who are fearful of change and wedded to old models see only piracy.

To be sure, digital theft is a serious matter: artists and their patrons both want to be sure that they are able to make money from the fruits of their creative labors. All of us do. That is a legitimate matter and it deserves a serious hearing. But I worry that over the last decade, the pendulum has swung too far in the direction of protection. During that time, the Recording Industry Association of America (RIAA), the Motion Picture Association (MPAA), and the superstar artists that support them convinced Congress to impose the strongest copyright protection regime in the 300-year history of copyright law. Two pieces of 1998 legislation were central to these efforts: the Digital Millennium Copyright Act and the Sonny Bono Copyright Term Extension Act.

Why do I worry? An excellent new book by Stanford Law professor Lawrence Lessig helps explain. The book is called Free Culture, and I recommend it. As Lessig shows, for much of this century, the life of a copyright was about 30 years.(4) That allowed authors, artists, and the companies who financed them to profit from their works, but it also ensured public access after a reasonable period.

As a result of recent changes though, creative material is now protected for 95 years or more—giving private owners (individual or corporate) complete control over sale, reproduction, and even "derivative use." That may seem reasonable until you consider that over the next twenty years, some one million patented inventions will enter the public domain, while not a single copyrighted work will do so.(5)

The recording and film industries have also put into place an aggressive legal strategy, filing multi-million dollar lawsuits for breaches of copyright law against those who download music or films from the Internet, no matter what the purpose. And the over-zealous application of licensing requirements has also led many artists, musicians, and playwrights to abandon even legal uses of expressive content for fear that they will still find themselves threatened with costly litigation. Not everyone can afford to defend their principles in court.

The dangers to creative expression are serious. Think of this: without a flexible regime of copyright protection Andy Warhol's famous, ironic uses of popular and political culture—Marilyn Monroe, Campbell's soup cans, Jacqueline Kennedy, Chairman Mao—might have been impossible to produce and display.

Many of the twentieth century's most important artists and creators would have been adversely affected. Pop Art. The use of collage and multi-media. All would be vastly different. No Roy Lichtenstein. No Robert Rauschenberg. No Cindy Sherman. Not as we know their work today.

In the music world, try to think of jazz if copyright law had been zealously applied to its riffs and rolls. It may never have gotten off the ground. Would we even be able to talk about Louis Armstrong or Billy Holiday? Each of them exploited new technologies—the phonograph and the radio in their case—to reinterpret the American repertoire and create a whole new idiom for musical interpretation.

We cannot anticipate fully what tomorrow's creators will look and sound like, but we do know that they will be able to use digital tools to pluck content out of bandwidth and manipulate it in ways ingenious and innovative. A rigid regime of copyright and intellectual property restricts those possibilities. Artists of all kinds will still exist, of course—inspiration lies deep in the human spirit—but there will be fewer of them in a world where currency will be required for creativity, the dollar narrowing the paths of our imagination and constraining our dreams.

Even the most traditional forms of performance are threatened under the current system. The Sonny Bono Act restored copyright to thousands of works that had already passed into the public domain. In Chicago, that means that small, local groups like the Northbrook Musical Theater for Young Audiences now face exorbitant fees—thousands of dollars—to perform children's classics like Cinderella, or musicals like Oklahoma. Their dance school for little girls—6 years and over—recently came under pressure from BMI for performing "Swan Lake" without a license!(6) The example would almost be amusing if it was not so serious—and so frequent.

Let me tell you about two other stories, both found in Lessig's book.

Jesse Jordan was a freshman at Rensselaer Polytechnic Institute (RPI) in Troy, New York. Majoring in information technology, he invented a kind of search-engine for the content of shared files on all of the computers that were linked by RPI's network. As it happened, about a quarter of the files on the machines were music—but the rest of the files contained un-copyrighted content of all kinds: personal pictures, notes, research. In any case, the technology itself was agnostic: it only facilitated a search of the network; it did not target music.

But in April of last year, when Jesse was a sophomore, the Recording Industry Association of America (RIAA) charged him with "willful" violation of copyright laws and sought damages of some $15 million. Jesse and his family were outraged, but he could not afford to fight the music industry in court. The RIAA agreed to settle the case when Jesse offered them his life-savings: $12,000 accumulated through summer jobs and other employment.(7)

The other example concerns a MacArthur grantee, Jon Else, a wonderful documentary filmmaker. One of his films is about stagehands at the San Francisco Opera, and featured a kind of upstairs-downstairs take on their work during a performance of Wagner's Ring Cycle. A good scene shows them playing checkers backstage while the Opera is being performed, with The Simpson's playing in the background. The Simpson's footage appears in the corner of the shot and it only plays for 4.5 seconds, but Else thought he should play it safe. He contacted the creator, Matt Groening, and the production company, Gracie Films, both of which gave their permission. But when he contacted Fox films, Gracie's parent company, they wanted $10,000 in licensing fees for just a few seconds of incidental footage. Although it was probably a legal "fair-use," Else did not have the time or money to waste in court, and his insurance company was not willing to run the risk of a lawsuit.(8)

There are thousands of such stories—about books, music, photography, film, and theatre—though they are often unknown to the legislators wooed by industry lobbyists. Some of these measures are proposed in the name of protecting artist's rights, but I do not think there has been adequate discussion in the artistic community of how to balance the rights of the creators with the public interest. We should be thinking about how to pay artists fairly for their work while preserving broad access for the rest of society.

I was struck while reading the mission and core beliefs of the Illinois Arts Alliance: "We believe that: the instinct to be creative is universal; [and that] The arts are integral and must be accessible to the lives of all citizens." The issues I am discussing today are fully consonant with that charge.

So what can be done?

Fortunately, there are some interesting new models being developed that protect artists without unduly constricting the ability to circulate their works in the public sphere. There are also groups working in the legislative and regulatory arena proposing sensible and fair intellectual property regimes. And there are allies in Congress—even in industry—making the case for change.

Concretely, I am recommending three things.

First, educate yourselves. Join the conversation. Let your audiences know that you take these issues seriously. There are many excellent sources you can draw on. A MacArthur grantee, Public Knowledge, works to educate artists, policymakers, and the general public about communication technology issues. They have a good website with clear information. Learn from them, and then help raise the awareness of the cultural community.(9)

Second, if you are an artist of any kind, explore alternative options for making your work more accessible under current law. It is possible. One that MacArthur supports is the Creative Commons Project. They have developed licenses that allow creators to share their works under conditions that they choose themselves, and which are more flexible than current law allows—for example, by allowing sampling or educational use. "Balance" is the key word. By opting in, the work and the public domain are both protected. If that sounds of interest to you, register your works and encourage others to take advantage of this new mechanism.(10)

And finally, if you feel strongly about these issues, talk with elected officials about reforms that are needed to strike a fair balance between the commercial and the public good. Among the elements of a sensible balance are:

  • Shorter terms for copyright (33 years seems about right);
  • No automatic renewal of expired or expiring copyrights;
  • A registry of protected material;
  • A more limited scope of protections, allowing sampling, for example. And we should consider making out-of-print or commercially unavailable material fair-game altogether.

In the end, what is sorely needed are the voices of people in the arts and cultural world that support this new balance and resist restrictions advocated by companies and industry associations in their name. I urge you to educate yourselves on the issues and to join the discussion, whether you agree with my take on them or not. The debate has to be public, it has to be lively, and it has to have the world of arts and culture at its core.

And so that is my challenge to each of you: the future of a free culture hangs in the balance. Decisions that are being made now will determine how creative content, information, and cultural resources will circulate during our lifetime and beyond. The time for education and action is now.

Let me close today by commending you all for the extraordinary work you do in keeping our Chicago institutions strong, fresh, engaged with diverse populations and critical issues. MacArthur is proud to be a steady and committed partner. I applaud you for all you do to keep our country and our world capable of imagining a more humane world at peace.

Thank you.

Jonathan F. Fanton is the President of the John D. and Catherine T. MacArthur Foundation.

1 Hirsch Perlman, "A Layman's Guide to Interrogation Techniques and Practices: Preface to the Third Draft: Behavior Irreverent," 1993; Museum of Contemporary Art Chicago.

2 Tod Lending, Legacy, Nomadic Pictures: Chicago, 2002

3 For more information and the full story, visit www.pbs.org/legacy/

4 Lawrence Lessig, Free Culture: How Big Media Uses Technology and the Law to Lock Down Culture and Control Creativity, The Penguin Press: New York, 2004.

5 See Lessig, 2004: 24; 87; 130-135; and 214.

6 BMI is Broadcast Music, Inc. The story was related by Dr. Gregory C. Dennhardt, Director of the Northbrook Musical Theater for Young Adults, Northbrook, Illinois.

7 For a full account, see Lessig, Chapter Three, "Catalogues," 48-52.

8 For a full account, see Lessig, Chapter Seven, "Recorders," 95-99.

9 Public Knowledge can be found at www.publicknowledge.org

10 Creative Commons can be found at creativecommons.org

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