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. icon
    Mike (profile), 1 Feb 2009 @ 5:48pm

    Re: Copywrite

    As a photographer, I earn financial gain for use of images. If someone chooses to use an image they should compensate me for its creation. People seem to think that for some reason that is should be free to be traded and used as they see fit because its a digital image.

    No, we just think you might be better off if you recognized how the market is changing, and worked on getting a new business model.

    They do not see the time in the studio to create, edit, etc the image and allow others to see it. Should that not be compensated?

    No, we recognize all of that, but we also recognize how the market works -- and part of the problem is that your business model is designed on a myth: that paying for the *copy* compensates for all of the work put into the original. Economic history suggests that's a dangerous business model. If you want to get compensated for the time in the studio to create, edit, etc. the image -- then figure out a way to charge for *that* and not the eventual copy.

    I do alot of fine art photography for artists and often hear the objection to the price. I also hear that "they can do it themselves". I have yet to find someone that can without the investment of knowledge and equipment to do the job correctly.

    Great! So you have some scarce talent that you can provide and others can't. Why not build a business model that acknowledges that, rather than selling "copies" which does *not* acknowledge that.

    It seems that people do not understand that compensation for images is how the photographer (or any other creative professional) lives.

    We understand that all too well. The point we're making is that you're going to have trouble making a living that way going forward, so it's about time you stopped complaining about the way you *used* to make money, and started looking into *new* ways to make money.

    A professional is paid to get it right, know how to accomplish it without guessing his way into it. Get it right, on time, within cost. That professionalism should be compensated correctly.

    No doubt. And no one has said otherwise. But how that works is all in the business model, and you chose a bad one.

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