Yes, Artists Build On The Works Of Others... So Why Is It Sometimes Infringement?

from the it's-called-inspiration dept

Following on our story the other day about copyright questions concerning the "appropriated art" that became the iconic Obama campaign poster, the Wall Street Journal has an interesting article exploring the fine line between derivative works and transformative works in the art world. As you probably know, derivative works (e.g., making a movie out of a book) are considered copyright infringement, but transformative works are not.

Of course, how you define a transformative work is a big open question. The article doesn't discuss it here, but for some unexplained reason, courts have mostly determined that there is no such thing as transformative works in music -- so sampling is mostly seen as infringement. The article, instead, focuses on visual artwork, though, where courts have ruled in different ways, depending on the artwork -- leading many to consider this to be a "gray area."

It probably won't surprise many, but to me the whole concept seems silly. The history of creativity has always included the concept of taking the ideas of others (those who influenced you) and building on them. That's the history of storytelling. It's the history of joke telling. It's the history of writing. It's the history of music. It's the way art is created. And that's a good thing. Art never springs entirely from 100% original thought. It's an amalgamation of what else is out there -- put together in a new way. What's even more ridiculous is that, in almost every one of these cases, it's difficult to see how the "original" complaining artist is even remotely "harmed" by the follow-on artists. If anything, it's likely that the later art would only draw more attention to the original artist. It's just that we've built up this ridiculous culture of "ownership" of ideas, where people think that someone else doing something creative by building upon my work is somehow "stealing." It's a shame, and it's incredibly damaging to our cultural heritage -- which, of course, is exactly the opposite of what copyright law is supposed to be about.

Filed Under: appropriation, art, copyright, derivative, inspiration, transformative

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  1. identicon
    Nelson Cruz, 31 Jan 2009 @ 12:44pm

    Just last night I was thinking about the "morality" of copyright (and patents at least in certain fields) in the 21st century. While I am still inclined to agree that authors deserve a share of whatever profits are made from commercial use of their work (although not necessarily setting prices), I see many more moral reasons against copyright, rather than for it.

    At an age where anyone with a computer can have access to all the music, books and movies ever made, with zero cost to the creators for each new copy, and remix and build upon them to make new works, how can authors and governments possibly morally justify locking up all this culture from most of the world? It blocks dissemination of culture, free speech, and creativity, especially on the internet.

    The same goes for pharma companies pricing life saving medications out or reach of millions and patenting methods of medical diagnostic and treatment. Or tech companies patenting basic ideas and features, instead of finished products.

    Yes, IP attracts investment that makes those works and medications be made in the first place. But that compromise must at least be reworked in the 21st century. There are other ways to fund creation and research (government grants, setting up prizes, etc). Artists are finding new business models that allow them to make money without locking up their works. And tech companies are starting to realize patents hurt them more than they help them.

    And yet, industry associations and many politicians keep talking about IP as if it is universally good, as if more control is always better, as if creativity and knowledge are private finite property, as if making money justifies everything!

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