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, 30 Jan 2009 @ 9:39pm

    The New Digital Age

    Listen my children and you shall hear,
    about the MAFIAA and their campaign of fear.
    'Tis the dawning of the new digital age,
    when the sharing of files is all the rage.

    The media is ours they would say and then stare,
    you can't give it away, it's illegal to share.
    Copyright 'tis true, we've perverted the law,
    the Public Domain is now destined to fall.
    Through lobbyists money and politicians greed,
    we now own everything you can hear, see or read.

    But you give it away through radio and tv,
    and you broadcast it all, for us to hear and to see.
    Yes this is true but we still have control,
    to own a copy you must pay us a toll.
    Should you dare share the media without our consent,
    we have an army of lawyers with which to torment.

    This can't be right and is wholly unfair,
    we're all human, it's just natural to share.
    For the benefit of all is the Public Domain,
    and a limited time was copyright's original reign.

    What the future holds is certainly unclear,
    as we forge ahead through this digital frontier.
    Will copyright become endless, to our dismay,
    or will the MAFIAA slowly die and wither away.

    Fifteen years is plenty you see,
    for copyright to last, please set our culture free.


    My sincerest apologies to Mr. Longfellow.

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