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
    unclenewt, 31 Jan 2009 @ 9:22pm

    Copyright and Sampling

    Copyright law today is horribly, horribly broken. It's plain for all to see that it has been twisted and contorted so much that it no longer serves its original purpose. I'm sure everyone is familiar with this line from the United States Constitution, "To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries." Please read that line again. Read it slowly and then think about copyright in the news.

      DVDs that can't be released because of music licensing issues.
      RIAA suing kids for sharing a few songs.
      Home videos removed from YouTube because of a song playing in the background.
      Lawsuits about image thumbnails in search engines and web sites linking to other web sites.

    Copyright has become the get rich scheme of the century, it's become a bludgeon to pound one's competition senseless in court. It's used as a gag to silence one's critics. It seems it's being used for everything except what it was originally intended for, "promote the Progress of Science and useful Arts".

    There is a lot of confusion over sampling, and fair use. In my poem above I sampled the first line from Longfellow's, The Midnight Ride of Paul Revere. I also tried to keep the same theme and meter.(Thanks for the compliments! I hacked it pretty badly though.)This is most certainly an example of fair use. Using the idea of another, building upon it and creating a new work. Also, hopefully enriching some of your lives by directing you to an author I admire.

    Sampling. Really, what's the difference if you record a few seconds from some songs and create a new work, or copy some guitar riffs and play them in a new song? They're both samples, one is recorded the other is played live. The blues were mentioned, or how about jazz? Both based on sampling and improvisation. What about Obama's poster? A work was sampled and a new work was made, simple. So unless it's outright blatant plagiarism both artists profit from the new work.

    Yes we need copyright, but life of the author plus an additional 70 years is just insane.

    P.S. I claim no copyright on my poem. I place it into the public domain. Although if I did and I live another 40 years(hopefully), the copyright would expire in 2119. Ridiculous huh?

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