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
    Mark Rosedale, 2 Feb 2009 @ 8:40am

    Re: Sampling

    I would have to disagree, while on the surface you can simplify sampling to just being able to operate a recorder (which would seem like no skill needed) in reality the good samplers create a new work out of the sampled work much like a good "collage" becomes its own work of art. Sure you may have only heard bad ones, or you may not appreciate the art, but don't demean something simply because you don't understand it or appreciate it. Your misunderstanding truly reveals itself when you say in written works it would be called "plagiarism." Plagiarism would be taking the entire work and claiming it as your own...in the music world this would be taking a Mozart piece erasing the name and putting yours there instead...that is not what sampling is at all, you take pieces of the original to make an entirely different piece.

    I understand what you are saying, I just don't think you have heard truly good samples, at least not truly transformative ones. The sentiment you express would be akin to looking at expressionist art, or music for that matter, and saying it doesn't qualify as such because I just don't get it, or I could do that myself.

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