Wednesday, July 30, 2008


Experience tells us that our creative practices are largely derivative, generally collective, and increasingly corporate and collaborative. Yet we nevertheless tend to think of genuine authorship as solitary and originary. This individualistic construction of authorship is a relatively recent invention, the result of a radical reconceptualization of the creative process that culminated less than two centuries ago in the heroic self-presentation of Romantic Poets. In the view of poets from Herder and Goethe to Wordsworth and Coleridge genuine authorship is originary in the sense that it results not in a variation, an imitation, or an adaptation, and certainly not in a mere reproduction, but in a new, unique -- in a word, "original" -- work which, accordingly, may be said to be the property of its creator and to merit the law's protection as such.

Thus, copyright owners find it incredibly useful to interpret current copyright doctrine to mean that the default is that any use of an existing work infringes unless specifically excepted. The Copyright Act promotes public access to knowledge because it provides an economic incentive for authors to publish books and disseminate ideas to the public. Harper & Row, 471 U.S. at 558, 105 S. Ct. at 2229 ("By establishing a marketable right to the use of one's expression, copyright supplies the economic incentive to create and disseminate ideas."). The Supreme Court has recognized that "[t]he monopoly created by copyright thus rewards the individual author in order to benefit the public." Id. at 546, 105 S. Ct. at 2223 (quoting Sony Corp. of America v. Univ. City Studios, Inc., 464 U.S. 417, 477, 104 S. Ct. 774, 807 (1984) (Blackmun, J.,dissenting)). Without the limited monopoly, authors would have little economic incentive to create and publish their work. Therefore, by providing this incentive, the copyright law promotes the public access to new ideas and concepts.

Some legal institutions find much to recommend this interpretation. To begin with, there is ease of enforcement. Get a license or do not sample. These institutions do not see this requirement of a license as stifling creativity in any significant way. It must be remembered that if an artist wants to incorporate a "riff" from another work in his or her recording, he is free to duplicate the sound of that "riff" in the studio. Second, the market will control the license price and keep it within bounds. The sound recording copyright holder cannot exact a license fee greater than what it would cost the person seeking the license to just duplicate the sample in the course of making the new recording. Third, sampling is never accidental. It is not like the case of a composer who has a melody in his head, perhaps not even realizing that the reason he hears this melody is that it is the work of another which he had heard before. When you sample a sound recording you know you are taking another's work product.

This attitude has led to some remarkable lawsuits. Mike Batt is a British classical composer who put together a group called "The Planets" in 2001. Their first album was called Classical Graffiti. In it Batt included a track with one full minute of silence. He said it was a tongue-in-cheek dig at a John Cage piece called 4 minutes 33 seconds which was similarly a track of total silence, albeit somewhat longer. Batt, credited himself as well as Cage with writing the piece. There would be precious few other ways to identify who the dig was directed at. Unfortunately, Batt soon found himself on the receiving end of a lawsuit from the estate of John Cage, who had died several years previous. In the trustees' view "We do feel that the concept of a silent piece - particularly as it was credited by Mr Batt as being co-written by 'Cage' - is a valuable artistic concept in which there is a copyright."

As the term suggests, appropriation art borrows common images from advertising, the mass media and elsewhere, places them in new contexts and, thereby, aims to change the way we think about these images. Some appropriation art, such as Duchamp's use of found objects, doesn't implicate copyright at all. But when the borrowed image is copyrighted, appropriation art risks infringing the rights of the copyright owner.

But might conceptual appropriations provides new insights into the original? If so, we might think twice before legally condemning it. Still, it must be noted that the art community is itself divided on appropriation art, with some artists whose works have been appropriated viewing the appropriators as destroying art.

Nevertheless, the claim that the concept of authorship in literature is intimately related to that which operates in law is principally an historical claim that copyright law, romantic authorship and the overpowering significance of the author were ‘born together’. That is, the link established in law between an author and a work, and the romantic conceptualization of the work as the organic emanation from an individual author, emerged simultaneously at the end of the eighteenth century. The consequence of this, it is claimed, is that the literary critique of authorship threatens the intellectual foundations of copyright law. If the legal walls establishing ownership of the text were built on the same intellectual foundations as romantic authorship, and those premises turn out to be sand rather than rock, copyright will sooner or later come tumbling down.

Moreover, while parts of the arts and legal communities might believe that any unauthorized appropriation runs up against the biblical adomonition, Thou shalt not steal," without borrowing, stealing, cribbing, remixing, mashing-up, collaging and compiling -- without influences great and small in other words -- there is no " creating.” No hip hop, sure, but also no blues, no Disney, no Shakespeare. No Lolita or “I have a dream.” We’d be reduced to staring at campfires and barking at one another.

I realized this forcefully when one day I went looking for the John Donne passage quoted above. I know the lines, I confess, not from a college course but from the movie version of 84, Charing Cross Road with Anthony Hopkins and Anne Bancroft. I checked out 84, Charing Cross Road from the library in the hope of finding the Donne passage, but it wasn't in the book. It's alluded to in the play that was adapted from the book, but it isn't reprinted. So I rented the movie again, and there was the passage, read in voice-over by Anthony Hopkins but without attribution. Unfortunately, the line was also abridged so that, when I finally turned to the Web, I found myself searching for the line “all mankind is of one volume” instead of “all mankind is of one author, and is one volume.”

My Internet search was initially no more successful than my library search. I had thought that summoning books from the vasty deep was a matter of a few keystrokes, but when I visited the website of the Yale library, I found that most of its books don't yet exist as computer text. As a last-ditch effort I searched the seemingly more obscure phrase “every chapter must be so translated.” The passage I wanted finally came to me, as it turns out, not as part of a scholarly library collection but simply because someone who loves Donne had posted it on his homepage. The lines I sought were from Meditation 17 in Devotions upon Emergent Occasions, which happens to be the most famous thing Donne ever wrote, containing as it does the line “never send to know for whom the bell tolls; it tolls for thee.” My search had led me from a movie to a book to a play to a website and back to a book. Then again, those words may be as famous as they are only because Hemingway lifted them for his book title.

In fact, from an artistic point of view, it is ponderously delusional to try to paint all these new forms of fragmentary sampling as economically motivated "theft", "piracy", or "bootlegging". We reserve these terms for the unauthorized taking of whole works and reselling them for one's own profit. Artists who routinely appropriate, on the other hand, are not attempting to profit from the marketability of their subjects at all. They are using elements, fragments, or pieces of someone else's created artifact in the creation of a new one for artistic reasons. These elements may remain identifiable, or they may be transformed to varying degrees as they are incorporated into the new creation, where there may be many other fragments all in a new context, forming a new "whole". This becomes a new "original", neither reminiscent of nor competitive with any of the many "originals" it may draw from. This is also a brief description of collage techniques which have developed throughout this century, and which are universally celebrated as artistically valid, socially aware, and conceptually stimulating to all, it seems, except perhaps those who are "borrowed" from.

No one much cared about the centuries old tradition of appropriation in classical music as long as it could only be heard when it was played live in front of your ears. But now all music exists as a mass produced, saleable object, electronically frozen for all time, and seen by its owners to be in continuous, simultaneous economic competition with all other music. The previously interesting idea that someone's music might freely include some appropriated music of another has now been made into a criminal activity. This example is typical of how copyright laws now actually serve to inhibit or prevent the creative process, itself, from proceeding in certain interesting ways, both traditional and new.

This has become a pressing problem for creativity now because the creative technique of appropriation has jumped from the mediums in which it first appeared (principally in the visual fine arts of painting, printmaking, and sculpture) to popular, electronic mass distributed mediums such as photography, recorded music, and multimedia. The appearance of appropriation techniques in these more recent mass mediums have occasioned a huge increase in owner litigations of such appropriation based works because the commercial entrepenours who now own and operate mass culture are apparently intent on oblitering all distinctions between the needs of art and the needs of commerce. These owners of mass produced cultural material claim that similarly mass produced works of appropriation are a new and devastating threat to their total control over the exclusive profits which their properties might produce in the same mass marketplace. They claim that, art or not, an unauthorized appropriation of any kind can not be allowed to directly compete in the appropriated material's avenue of commerce, as if they were equal in content, and equal in intent. The degree to which the unique nature and needs of art practice do not play any part in this thinking is more than slightly insane.

Consider the starkly stupid proposition that collage has now become illegal in music unless the artist can afford to pay for each and every fragment he or she might want to use, as well as gain permission from each and every owner. Consider how this puts a stop to all independent, non-corporate forms of collage in music, and how those corporately funded collage works which can afford the tolls had better be flattering to the owner in their usage. . . .

Please consider the ungenerous and uncreative logic we are overlaying our culture with. Artists will always be interested in sampling from existing cultural icons and artifacts precisely because of how they express and symbolize something potently recognizable about the culture from which both they and this new work spring. The owners of such artifacts and icons are seldom happy to see their properties in unauthorized contexts which may be antithetical to the way they are spinning them. Their kneejerk use of copyright restrictions to crush this kind of work now amounts to corporate censorship of unwanted independent work.

In fact, compliance with copyright law results in the guarantee of copyright to the author only for a limited time, but the author never owns the work itself. This has an important impact on modern interpretation of copyright, as it emphasizes the distinction between ownership of the work, which an author does not possess, and ownership of the copyright, which an author enjoys for a limited time. In a society oriented toward property ownership, it is not surprising to find many that erroneously equate the work with the copyright in the work and conclude that if one owns the copyright, they must also own the work. However, the fallacy of that understanding is exposed by the simple fact that the work continues to exist after the term of copyright associated with the work has expired. "The copyright is not a natural right inherent in authorship. If it were, the impact on market values would be irrelevant; any unauthorized taking would be obnoxious." Pierre Leval, Towards a Fair Use Standard, 105 Harv. L. Rev. 1105, 1124 (1990).

We are not, however, a society oriented only toward property ownership. Free expression, based primarily in the First Amendment of the Bill of Rights, is also foundational to our society. It is exposure to ideas, and not to their particular expression, that is vital if self-governing people are to make informed decisions. There is, however, an inherent tension here. While the First Amendment disallows laws that abridge the freedom of speech, the Copyright Clause calls specifically for such a law. The First Amendment gets government off speakers' backs, while the Copyright Act enables speakers to make money from speaking and thus encourages them to enter the public marketplace of ideas.

In order to strike the balance between the copyright owner’s property interest in his creation against society’s interest in being able to use that creation, there is a swing toward the view enunciated by Judge Pierre Leval in his article “Toward a Fair Use Standard," 103 Harv. L. Rev. 1111 (1990). In that article, Leval wrote that in order to constitute a non-infringing fair use, an unauthorized use of copyrighted material

must be productive and must employ the quoted matter in a different manner or for a different purpose from the original. A quotation of copyrighted material that merely repackages or republishes the original is unlikely to pass the test; in Justice Story's words, it would merely "supersede the objects" of the original. If, on the other hand, the secondary use adds value to the original -- if the quoted matter is used as raw material, transformed in the creation of new information, new aesthetics, new insights and understandings -- this is the very type of activity that the fair use doctrine intends to protect for the enrichment of society. Transformative uses may include criticizing the quoted work, exposing the character of the original author, proving a fact, or summarizing an idea argued in the original in order to defend or rebut it. They also may include parody, symbolism, aesthetic declarations, and innumerable other uses.

Thus, In perhaps the most influential case current case on the legitimacy of artistic appropriation, the court made clear that “[t]he test for whether [the appropriating art] is ‘transformative,’" and therefore non-infringing, “is whether it ‘merely supersedes the objects of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.’"

What does all this mean? Good question. Changing material conditions will almost always require the law on which they are based to change. And if anything is clear, it is that we are in a period in which the material conditions concerning the reproduction and dissemination of art are in flux. But one thing is clear: these questions will be asked and likely answered in the not-too-distant future. Hang on.

Postscritpt: This post steals its method from Jonathan Lethem's essay, "The Ecstacy of Influence, A Plagiarism. As Open Source explains, “[n]early every word of [Lethem's] essay about cultural borrowing and reworking was stolen — er, appropriated — from some other source and then cobbled together with a big dose of Lethem magic to form a cohesive whole.” So too does this post cobble together, albeit with very little of my magic, other sources in an effort to make a cohesive, if open-ended, whole. The pieces (which include, among many other sources, Lethem’s essay, Open Source’s discussion of it, and my own What is Fair Use? blog) are all indicated by the hyper-links beginning each appropriation.


Jennifer said...

Thank you for the stimulating post, professor! The link to what you view as the most influential current case on artistic appropriation has expired- which case are you referring to? The one in which you reference the quote: "the test for whether [the appropriating art] is ‘transformative,’" and therefore non-infringing, “is whether it ‘merely supersedes the objects of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.’"

Thank you!

peter said...

Sorry about that -- the proper link, to Blanch v. Koons, is