Court rules Harry Potter Lexicon infringed J.K. Rowling's copyright

I've been vindicated. I wrote on April 14 that I thought J.K. Rowling's claim for copyright infringement against the author of a lexicon would prevail because the case seemed materially indistinguishable from Castle Rock Entertainment Group v. Carol Publishing, Inc., in which the 2d Circuit Court of Appeals held that the compilation of a trivia book basead on the characters and events of the Seinfeld television series did not constitute fair use.

Yesterday, Judge Robert P. Patterson Jr. of Federal District Court in Manhattan wrote in his 68-page ruling blocking publication of a Harry Potter Lexicon written by Steven Jan Vander Ark that “Plaintiffs have shown that the lexicon copies a sufficient quantity of the Harry Potter series to support a finding of substantial similarity between the Lexicon and Rowling’s novels.”

These cases turn in large part on how much of the original work is merely being repackaged. In Castle Rock, the defendant had created a trivia game based on the Seinfeld series. The court held in essence that she had merely repackaged the "facts" of the series in a different way. Similarly, the Harry Potter Lexicon was merely a repackaging of material from the Harry Potter books. Apparently, the entries copied verbatim substantial parts of the book.

In the parlance of the four-part test of fair use, the infringing works in these two cases were "derivative" works. The copyright holder has exclusive rights to the derivative markets for his or her works. It is not often easy, however, to determine what is a derivative work. One could argue that any work that appropriates material from a copyrighted work is "derivative" of the copyrighted work, but plainly the derivative markets over which a copyright holder has exclusive rights cannot include the market for any appropriating work.

These cases turn, then, on two principal issues: how much is copied and how much does the work constitute original, "transformative," work rather than mere repackaging of already existing work. Thus, if one commenter to my April 14 post had been right -- that the Lexicon, as the defendants had claimed, had contained substantial amounts of commentary without substantial outright copying -- the Lexicon might have constituted fair use. As the decision now stands, however, the Lexicon seemed to be too much repackaged copying and too little independent work. Certainly, that is J.K. Rowling's view. She was quoted after the decision saying, "The proposed book took an enormous amount of my work and added virtually no original commentary of its own. ... Many books have been published which offer original insights into the world of Harry Potter. The Lexicon just is not one of them."

The first authoritative survey of the history of collage

Collage: Assembling Contemporary Art is the first authoritative survey of the history of collage from its origins through to the latest work being produced by artists today. From the traditional ‘cut and paste’ method through to digital, three-dimensional and installation work, and in the incorporation of contemporary concerns such as environment and commercialism, collage is experiencing an exciting renaissance.

Amazon's description of the book (hyperlinks added):

Collage: Assembling Contemporary Art is the first authoritative survey of the history of collage from its origins through to the latest work being produced by artists today. Collage has a relatively short, but incredibly rich history. Dating back to the early 1900s, it first emerged in the work of artists such as Picasso, Braque and, later, the Constructivists and has since proliferated through figures like Kurt Schwitters, Max Ernst and the Surrealists, branching out into a myriad of fine art practice that encompasses assemblage, montage and décollage. The popularity of collage is on the increase again, partly as a result of such postmodernist concerns as pluralism, multiplicity and hybridity. This art form is also flourishing in other areas, ranging from the traditional `cut and paste' method through to digital and installation collage. Featuring works by international artists Picasso, Schwitters and Ernst, through to Hannah Hoch, Martha Rosler, John Stezaker, Richard Hamilton, Layla Curtis, David Salle, Eduardo Poalozzi, Javier Rodriguez, Robert Rauschenberg, Mimei Thompson, David Thorpe, Fred Tomaselli and many more. Collage: Assembling Contemporary Art also includes texts, by both academics and artists, which outline the history of the medium as well as critically addressing how collage is being used throughout contemporary art today.

appropriation can be original

I disagree with the first part of this quote, from Barry Slotnick, head of the intellectual property litigation group at the law firm Loeb & Loeb. I agree with the second:

(1) "Fair use is a means to allow people to comment on a pre-existing work, not a means to allow someone to take a pre-existing work and recreate it into their own work."

(2) "What you can't do is substitute someone else's creativity for your own."

And considering how original Girl Talk is, I think it unlikely anyone will sue them. It's far more likely a record company will sue some much more ham-fisted appropriator who has not created something original out of pre-existing pieces.

Appropriation

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.

Is Coldplay original?

This whole question of originality can make one's head spin. It may not help Coldplay's situation that Chris Martin has been quoted in the past as saying "We're definitely good, but I don't think you can say we're that original," he notes. "I regard us as being incredibly good plagiarists."



Addendum, from Techdirt:

[T]he guy from Creaky Boards later not only retracted his accusation, but suggested that perhaps both bands were actually "inspired" by the "Fairy Theme" in the Legends of Zelda. In a world of strict copyright, of course, that might make both songs "illegal," though I doubt anyone would think that would be the optimal outcome.

. . . The thing is, part of the point we keep trying to make around here is that, for the most part, that's true of just about everyone. It's the overly aggressive use of copyright law that prevents that sort of "goodness" from showing up. Oh, and it's also worth mentioning, that this little story has definitely increased the profile of The Creaky Boards -- proving one of the points we recently made about plagiarism. Even if the plagiarist is "bigger" than you, the original creator can use that to their advantage as well.

Kid Rock doesn't steal, but is there anything original about him?

Speaking of Kid Rock, of course, brings to mind his own appropriation of Lynyrd Skynyrd's Sweet Home Alabama, Warren Zevon's Werewolves of London, and Bog Seger's Night Moves, which can't help but bring back a fond nostalgia for the much maligned decade of my teens (the '70s). I have no doubt, of course, that Kid Rock paid big bucks to the copyright holders of the songs he appropriated (though, perhaps, not to Seger, from whose Night Moves there isn't quite copying), but I'm sure he's made far, far more than he paid.

And could there possibly be a more fitting instance of The Manual's principles in action?

Copyright Ignorance from MTV.com

In connection with yesterday's post about Girl Talk's new album, I can't help but mention today's post on MTV.com by James Montgomery. Montgomery writes of listening to the album while flying on a plane along with L.L. Cool J and wondering:

Song seven on the [Girl Talk] record is called "Like This," and it features, in addition to a whole lot of other things, two very audible samples of LL's "Mama Said Knock You Out," two samples that Girl Talk did not obtain LL's permission to use, which means that they appear in the song illegally, which means that LL is not getting paid for their usage, which would probably make LL very upset if he had any idea that this was happening. (emphasis added.)

Then Montgomery writes that Girl Talk's Greg Willis uses "the concept of 'fair use' to shield himself from any pesky copyright suits."

I can't believe someone from MTV.com is writing on these issues from such a state of ignorance. It's far from certain that what Girl Talk is doing is "illegal," and "fair use" is no "technicality" to shield one from copyright infringement lawsuits. It's one's constitutional right.

And, incidentally, D.J. Danger Mouse has not, as Montgomery implies, "left the [musical collage] genre behind.

Addendum: First, according to Will in the comments, Mr. Montgomery should have known better than to think LL Cool J would've been upset by Girl Talk's appropriation because "LL recently recorded a 'mixtape' called 'Return of the G.O.A.T.' featuring a number of freestyles over uncleared sampled beats."

Second, and more important in trying to determine whether Girl Talk's appropriations constitute fair use, Mr. Montgomery's own evaluation of Girl Talk's music basically makes the case that the use is "transformative" and therefore does constitute fair use. He writes: "[Girl Talk's] new album is so great, the kind of thing that could not have existed 10 years ago, an audio time capsule of the era in which we live. The kind of thing that can inspire post-millennial dilemmas at 37,000 feet."

Then again, inasmuch as Mr. Montgomery is a shill for MTV, and MTV is part of a corporate conglomerate with every interest in hiding the realities of fair use from the public, it should be no surprise that he writes with such ignorance about fair use. Here are some posts to try to begin to bring him up to speed.

Everybody's a mixed bag, but who gets the money?

"'Walter Boudreau is frustrated by the attempts of cultural institutions, such as the Académie Française, to keep language, art, music, whatever, pure. 'How foolish. We're all impure. Everybody's a mixed bag. Everything is in constant transformation.'"

Lloyd Whitesell "chose to pose more questions. Who owns music? Do people borrow or steal music, or is music in the public domain? Drawing on anthropologist Steven Feld's observations, Paul Simon's Graceland was a blend of rock and roll, Cajun, and South African pop, but Simon is the one who gets the money."

collage is art, not theft

From Negativeland:

[F]rom 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.

Douglas Gordon on his 24 Hour Psycho

Douglas Gordon's 24 Hour Psycho:

		24 Hour Psycho The exhibition begins with 24 Hour Psycho (1993), a slowed-down version of Alfred Hitchcock's 1960 film Psycho. A different take on a familiar classic, it introduces many of the important themes in Gordon's work: recognition and repetition, time and memory, complicity and duplicity, authorship and authenticity, darkness and light.
		Douglas Gordon in his own words: "24 Hour Psycho, as I see it, is not simply a work of appropriation. It is more like an act of affiliation... it wasn't a straightforward case of abduction. The original work is a masterpiece in its own right, and I've always loved to watch it. ... I wanted to maintain the authorship of Hitchcock so that when an audience would see my 24 Hour Psycho they would think much more about Hitchcock and much less, or not at all, about me...

A little change can make a great transformation

Henry McKervey and Declan Long, in "Makers and Takers: Art and the Appropriation of Ideas:

[I]t is the expression of an idea which is subject to legal protection. While perhaps this has meant that an artist such as Gillian Wearing can be faced with difficulties over the unattributed re-application of her work, the law also could be said to give artists a relative amount of freedom to take and re-use material in any number of subtly different ways without the spectre of plagiarism remaining ever-present. In a work such as Douglas Gordon's 24 Hour Psycho, for instance, there is in one sense very little of the artist's 'own' work (Hitchcock's classic thriller being merely re-played at a radically slowed-down pace) yet Gordon's intervention makes for a powerful, transformative artistic statement. The question of "knowing originality when you see it" is almost beside the point in cases such as this: artists' strategies of appropriation prompt questions of originality to become thematically intriguing on, one level, while also being critically irrelevant and, on occasion, inappropriate, on another.

Artistic intent, art interpretation, and the transformative nature of appropriation art

Are we really going to require an inquiry into an appropriation artist's purposes in determining whether the appropriation is "transformative"? As Sister Wendy Beckett explains in the Encyclopedia Britannica Online, in words that are so well accepted they are almost trite,

The passageway provided by art is very wide. No single interpretation of art is ever “right,” not even the artist's own. He or she can tell us the intent of the work, but the actual meaning and significance of the art, what the artist achieved, is a very different matter. (It is pitiable to hear the grandiose discussions of artists' work by the least talented of our contemporaries.) We should listen to the appreciations of others, but then we should put them aside and advance toward a work of art in the loneliness of our own truth. Each of us encounters the work alone, and how much we receive from it is wholly the effect of our will to accept this responsibility.

What was Jackson Pollock's purpose in painting Lavender Mist? Van Gogh's in painting The Irises? Haven't we accepted by now the limitations focus on artistic intention would impose on our appreciation of art? Yet, in Blanch v. Koons, 467 F.3d 244, 252-53 (2d Cir. 2007)(emphasis added), the Second Circuit, in holding that Jeff Koons' appropriation of a copyrighted photograph constituted fair use, based its conclusion that Koons' use of the photograph was "transformative" precisely on Koons' statements regarding what he intended:

Koons asserts -- and Blanch does not deny -- that his purposes in using Blanch's image are sharply different from Blanch's goals in creating it. Compare Koons Aff. at P4 ("I want the viewer to think about his/her personal experience with these objects, products, and images and at the same time gain new insight into how these affect our lives.") with Blanch Dep. at 112-113 ("I wanted to show some sort of erotic sense[;] . . . to get . . . more of a sexuality to the photographs."). The sharply different objectives that Koons had in using, and Blanch had in creating, "Silk Sandals" confirms the transformative nature of the use. See Bill Graham Archives, 448 F.3d at 609 (finding transformative use when defendant's purpose in using copyrighted concert poster was "plainly different from the [*253] original purpose for which they were created"); see also 17 U.S.C. § 107(1) (first fair-use factor is the "purpose and character of the use" (emphasis added)).

Koons is, by his own undisputed description, using Blanch's image as fodder for his commentary on the social and aesthetic consequences of mass media.Castle Rock Entm't, 150 F.3d at 142 (quoting Leval, supra, 103 Harv. L. Rev, at 1111). When, as here, the copyrighted work is used as "raw material," Castle Rock Entm't, 150 F.3d at 142 (internal quotation marks and citation omitted), in the furtherance of distinct creative or communicative objectives, the use is transformative. Id.; see also Bill Graham Archives, 448 F.3d at 609 (use of concert posters "as historical artifacts" in a biography was transformative); Leibovitz v. Paramount Pictures Corp., 137 F.3d 109, 113 (2d Cir. 1998) (parody of a photograph in a movie poster was transformative when "the ad [was] not merely different; it differ[ed] in a way that may reasonably be perceived as commenting" on the original). His stated objective is thus not to repackage Blanch's "Silk Sandals," but to employ it "'in the creation of new information, new aesthetics, new insights and understandings.'"

The test for whether "Niagara's" use of "Silk Sandals" is "transformative," then, 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." Campbell, 510 U.S. at 579 (internal quotation marks and citation omitted, alteration incorporated); Davis, 246 F.3d at 174 (same). The test almost perfectly describes Koons's adaptation of "Silk Sandals": the use of a fashion photograph created for publication in a glossy American "lifestyles" magazine -- with changes of its colors, the background against which it is portrayed, the medium, the size of the objects pictured, the objects' details and, crucially, their entirely different purpose and meaning -- as part of a massive painting commissioned for exhibition in a German art-gallery space. We therefore conclude that the use in question was transformative.

Would an appropriator sue someone who had appropriated his work?

In my comments to students after an oral argument on the cross motions for summary judgment on the legal writing problem that inspired this site, I suggested that the idea (advanced by counsel for the plaintiffs) that the KLF would pursue a copyright infringement action against anyone who appropriated K Cera Cera seemed pretty far-fetched. It would take too much nerve for an appropriator to sue someone for appropriation, wouldn't it? Perhaps not, at least in the case of Shepard Fairey.

I still think such a move is contrary to part of what the KLF were all about.

Then again, maybe Baxter Orr's claim that Shepard Fairey has served him with a cease and desist order is a hoax Orr cooked up to garner publicity for his own work.

When will we no longer consider it "original" to express the "insight" that much of what we label "original" and thereby protect with copyright law is just the same old pap recycled by corporate giants, not art created by divinely inspired geniuses living among us? That idea may not itself be an original one, but it does not seem to have penetrated very much into the culture at large, much less copyright law, at least not when the most successful commercial "artists" are so plainly the synthetic creations of corporate giants:

"It's an amazing thing that we've reached a place in the entertainment industry where a 15-year-old Disney firecracker could outsell 'The Boss,' that the kid who plays Harry Potter could make more money in a year than Jennifer Aniston and Sandra Bullock," said Lea Goldman, senior editor of Forbes. "Kids are where it's at today. Tweens wield mighty, mighty power in the marketplace."

Like many others in entertainment, [Miley] Cyrus is probably better known for her character's name, Hannah Montana, than her real name. However, the name "Hannah Montana" is owned by Disney, which controls all aspects of its use and pockets much of the earnings.

"Miley is unusual in that much of her earnings are under a Disney-owned brand, that of Hannah Montana," Goldman said. "This is a Disney property. That means Disney enjoys ownership of all the rights and royalties associated with the brand."

Syracuse popular culture professor Robert Thompson agrees.

"Miley Cyrus as Hannah Montana is the huge phenomenon it is, not because she's a brilliant actor or an extraordinary singer," he said. "The reason it is a phenomenon is because of the incredible industrial complex that Disney has in control. The way the concert was promoted, the handling of Hannah Montana is a phenomenon created out of a brilliant set of marketing strategies."

That's why the teen star whose full name is Destiny Hope Cyrus - Miley is a nickname - is known more as Hannah Montana. On her second music recording, a two-disc follow-up to her Hannah Montana soundtrack, Cyrus uses her full name on the second disc. Beyond that, her official Web site (mileyworld.com) and her live television appearances as herself, Cyrus is Hannah Montana to the public.

Goldman said that Disney is well aware that Hannah Montana would not exist without Cyrus, "and she is well-compensated. But Miley wouldn't be Miley without Hannah."

Digital online copies of Sherry Levine's photographs of Walker Evans' photographs

From After WalkerEvans.com

In 1936 Walker Evans photographed the Burroughs, a family of sharecroppers in Depression era Alabama. In 1979 in Sherrie Levine rephotographed Walker Evans' photographs from the exhibition catalog "First and Last." In 2001 Michael Mandiberg scanned these same photographs, and created AfterWalkerEvans.com and AfterSherrieLevine.com to facilitate their dissemination as a comment on how we come to know information in this burgeoning digital age.

Here on AfterWalkerEvans.com you will find a browsable selection of these images. Links to the high-resolution exhibition-quality images to download and print out. Along with a certificate of authenticity for each image, which you print out and sign yourself, as well as directions on how to frame the image so that it will fulfill the requirements of the certificate.

By building the image's URL into the title - the image to the left is "Untitled (AfterWalkerEvans.com/2.jpg)" - the images are locatable and downloadable by anyone who sees or reads about the image. By distributing the images online with certificates of authenticity, the images are accessible by anyone. Unlike the work of the late Felix Gonzalez-Torres ‹ known for his spills of candy and stacks of paper from which the viewer can take a piece of, though the sculpture stays complete because the owner possesses the certificate of authenticity, the right to reproduce ‹ the certificates here are used to insure that each satellite image be considered with equal authenticity, not the opposite. This is an explicit strategy to create a physical object with cultural value, but little or no economic value.

One artist's view on creative and non-creative appropriation

Artist Mark Vallen's critique of the Shepard Fairey's solo "art" exhibition:

. . . Fairey has developed a successful career through expropriating and recontextualizing the artworks of others, which in and of itself does not make for bad art. Pop artist Roy Lichtenstein based his paintings on the world of American comic strips and advertising imagery, but one was always aware that Lichtenstein was taking his images from comic books; that was after all the point, to examine the blasé and artificial in modern American commercial culture. When Lichtenstein painted Look Mickey, a 1961 oil on canvas portrait of Mickey Mouse and Donald Duck, everyone was cognizant of the artist’s source material - they were in on the joke. By contrast, Fairey simply filches artworks and hopes that no one notices - the joke is on you.

Plagiarism is the deliberate passing off of someone else’s work as your own, and Shepard Fairey may be unfamiliar with the term - but not the act. This article is not about the innocent absorption of visual ideas that later materialize unconsciously in an artist’s work, we do after all live in a maelstrom of images and we can’t help but be affected by them. Nor am I referring to an artist’s direct influences - which artist can claim not to have been inspired by techniques or styles employed by others? What I am concerned with is the brazen, intentional copying of already existing artworks created by others - sometimes duplicating the originals without alteration - and then deceiving people by pawning off the counterfeit works as original creations. . . .

Patry on Appropriation Art

Patry on Copyright
Database updated March 2008
William F. Patry
Chapter 10. The Fair Use Defense

Appropriation art poses very difficult problems for fair use, including whether it constitutes a comment, criticism, or parody.[FN1] The answer to that question is complicated in the case of appropriation art by its very essence, a conceptual statement, rather than a classic transformative use. Both artists and judges have very different about how appropriation fits into fair use: is it a well-recognized form of artistic expression, or is it piracy? In Rogers v. Koon,[FN2] as Judge Posner and Professor Landes have observed: "From the perspective of copyright law the very term "Appropriation Art" is a provocation; "appropriation" of a copyrighted works connotes stealing."[FN3] If art is in the eye of the beholder, such fair use appropriation art is even more so.

[FN1] See William Landes, Borrowed Images, and Appropriation Art: an Economic Approach, 9 Geo. Mason L. Rev. 1 (2000).

[FN2] Rogers v. Koons, 960 F.2d 301 (2d Cir. 1992).

[FN3] Landes and Posner, The Economic Structure of Intellectual Property Law, 261 (2003). See also Landes and Posner, The Economic Structure of Intellectual Property Law at 262-229. It should be noted that this is not Landes and Posner's own view; they believe the Koons case was incorrectly decided.

How to profit without risking infringement: appropriate creations unprotected by our intellectual property laws

More from the Manual, the KLF's how-to book on making a number one pop hit. Here they note that the first component part of the song is its "groove," and that "Black American records" are always a reliable source for effective ones. Oh, and they point out that the grooves on those records aren't even considered part of the copyrighted music:

The first of the component parts you are going to need to find is the irresistible dance floor groove.

Before we go any further we had better define "groove". It is basically the drum and bass patterns and all the other musical sounds on the record that are neither hummable or singalongable to. . . .

Black American records have always been the most reliable source of dance groove. These records down through the years have inevitably laid so much emphasis on the altar of groove and so very little into fulfilling the other Golden Rules that they very rarely break through into the U.K. Top Ten, let alone making the Number One spot. A by-product of this situation is that gangsters of the groove from Bo Diddley on down believe they have been ripped off, not only by the business but by all the artists that have followed on from them. This is because the copyright laws that have grown over the past one hundred years have all been developed by whites of European descent and these laws state that fifty per cent of the copyright of any song should be for the lyrics, the other fifty per cent for the top line (sung) melody; groove doesn't even get a look in. If the copyright laws had been in the hands of blacks of African descent, at least eighty per cent would have gone to the creators of the groove, the remainder split between the lyrics and the melody. If perchance you are reading this and you are both black and a lawyer, make a name for yourself. Right the wrongs.

The KLF aren't the only ones who have detected racial and cultural bias in Western intellectual property laws. As the Authorship Collective in the English Department right here at Case Western Reserve explains (footnotes omitted):

With its emphasis on originality and self-declaring creative genius, this notion of authorship has functioned to marginalize or deny the work of many creative people: women, non-Europeans, artists working in traditional forms and genres, and individuals engaged in group or collaborative projects, to name but a few. Exposure of these exclusions -- the recovery of marginalized creators and underappreciated forms of creative production -- has been a central occupation of cultural studies for several decades. But the same cannot be said for the law. Our intellectual property law evolved alongside of and to a surprising degree in conversation with Romantic literary theory. At the center -- indeed, the linchpin -- of Anglo-American copyright as well as of European "authors' rights" is a thoroughly Romantic conception of authorship. Romantic ideology has also been absorbed by other branches of intellectual property law such as the law of patent and trademark; and it informs the international intellectual property regime. In patent it survives today both in figurations of the inventor and in the emphasis, which this body of law shares with copyright, on the "transformative" moment in the creative process.

The Authorship Collective goes on to cite examples of "biopiracy," the appropriation by pharmaceutical companies of native knowledge in medicinal plants. The companies then patent synthetic versions of the plants' effective ingredients and profit from the sale of the "new" drug. For example:

The Hoodia cactus, native to South Africa, has recently come to the fore of the debate surrounding bioprospecting and intellectual property rights. The Hoodia cactus, native to the Kalahari Desert, has been used for centuries by the hunter-gatherer San speaking tribes of the region (in the past they were commonly referred to as "Bushmen", although now this designation is recognized as being pejorative, inaccurate and outdated). The San peoples have long recognized the appetite suppressant qualities of the Hoodia cactus, and have traditionally chewed the stem to stave off hunger and thirst during long hunting expeditions in the desert. Scientists from the South African Council for Scientific and Industrial Affairs learned of the Hoodia's properties and began to study the cactus. In scientific tests, animals given the cactus lost weight rapidly without any apparent negative side effects. According to scientists from the South African Council for Scientific and Industrial Affairs (CSIR), the Hoodia works by "mimicking the effect glucose has on the nerve cells in the brain, in effect telling us we're full…thus curbing the appetite." (http://news.bbc.co.uk/2/hi/programmes/correspondant/2947810.stm) Scientists at the CSIR dubbed the appetite suppressant molecule in the Hoodia "P57". Recognizing the enormous potential market for the Hoodia outside South Africa, CSIR placed a patent on P57 and sold the licensing rights to an English biopharmaceutical firm, Phytopharm, in 1997. Phytopharm then sold the license to American pharmaceutical giant Pfizer for 25 million dollars. Throughout the whole process, however, the San peoples were completely unaware of what was occurring.

Richard Prince, Photographer of Photographs

A copy is art, so what's the original?