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
Comments on “Yes, Artists Build On The Works Of Others… So Why Is It Sometimes Infringement?”
built on the shoulders of those who came before
E = mC^2 is a transformative work.
as are the three laws of motion
and others … many others.
Re: built on the shoulders of those who came before
E = mC^2 is a transformative work.
You mean “derivative work”, don’t you?
Re: Re: built on the shoulders of those who came before
That thought did occur to me 🙂
Totally Agree
Was just discussing the exact same topic just yesterday and I agree 100% with your opinion. Great post
Re: Totally Agree
troll
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.
unclenewt
My sincerest apologies to Mr. Longfellow.
Re: The New Digital Age
Very nice!
Re: The New Digital Age
That was an awesome poem. Thank you much.
Well, duh!!
It is proven throughout history that all art was based on earlier types of art. From cave paintings by early man to ancient temples and pyramids. Heck, I even base my work off of others’ works. Those many so-called copycats you see in cartoons (GoBots anyone?) were simply derivatives off of already-successful franchises. Even if they don’t work out to well, the artists and creators of such works learn from those mistakes and make something even better afterward.
Sampling
Sampling is a bad example. It’s neither derivative nor transformative – a sample is the work of the original artist. In visual arts it’s like a collage, and in written works it would generally be called plagiarism unless it’s an attributed quote. In any case, if the original artists don’t care for the way their work is cut and reused, they have every right to complain. I don’t have much sympathy – the ability to operate a recorder doesn’t qualify as creativity in my opinion.
Re: Sampling
I think Weird Al Yankovic should be considered transformative, yet he samples the entire song.
Re: Re: Sampling
I think Weird Al Yankovic should be considered transformative, yet he samples the entire song.
No he doesn’t; he parodies the song. Sampling involves wholesale copying of a portion of a sound recording and using it as it is in a different work. Parody involves taking the score of the original song and changing the lyrics or music in such a way to poke fun at something, perhaps even the original song. One involves taking pieces of an unchanged song; the other involves making substantive changes to the underlying work.
Further, parody is recognized as a fair-use defense to infringement.
Re: Sampling
Sampling of a bad example. This is not a derivative or change – the nature of the work and the original artists. The combined visual arts, known as the most important written work of the conversion, unless the response to the allocation. In any case, if the original artists are not interested in their work to reduce, reuse, and have the right to appeal. I do not have much empathy – the ability to monitor the audio recording is not the party that creativity, in my opinion.
Re: Sampling
In any case, if the original artists don’t care for the way their work is cut and reused, they have every right to complain. I don’t have much sympathy – the ability to operate a recorder doesn’t qualify as creativity in my opinion.
to each his own i suppose. there are a ton of examples where audio clips when re-arranged completely change the character of a song or make a unique statement that is outside what the original creator intended.
http://sulis.webcity.com.au/~wax49993/mediacracy/07_Imagine_This.mp3
http://www.waxaudio.com.au/news/imagine_video
if you don’t like hip hop or trance, then it’s probably hard for you to see the value of sampling.
if you don’t like hiphop or techno then samples probably aren’t your thing.
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.
Transformative work
The modern over-priced musician / artist demands copyright protection. There would be no rock and roll without country and blues. In the blues, there was only copying, sharing and transforming. Arthur Craddup’s Milk Cow Blues is only his version of the song. He stole it from other people who didn’t like lawyers and courts. That process of cross-fertilization created the blues which a lot of over-paid rock stars transformed and made themselves rich on.
Bob Dylan is a copyright freak yet almost everything he does is stolen from Shakespeare, Keats, the Bible, blues singers, country singers, his girlfriends. Poor Dave Von Ronk had Dylan steal his cool version of House of the Rising sun only to have Eric Burden steal it again and make a hit song.
On Bob’s last album he stole most of the songs including Muddy Waters’ version of Rolling and Thumbling and put his name on it. Of course, fans get even by having hundreds of hours of Dylan bootlegs.
Music transformed is real music and better because it grows faster. The stagnation of rock and roll occurs when walls are put up by silly people who want to retire after a few hits.
Damn good poem unclenewt
Just In Case You Really Don't Get It -
I doubt that I’m pointing out something which aint’ self-evident, but here ya go:
1.U2 puts out an album, you slavishly sample it in its entirety & market it under the name of “Old Spy Plane”. Copyright infringement.
2.Same as above, but you dub in a track of heart-felt harmony, perhaps even a duet. You and Bono see eye to eye, and emote as a single dull-normal human being.
Derivative work.
1.NegativeLand takes a line from a U2 ditty, puts it in a context which makes its goofiness blatant enough for U2 to take legal action against NegativeLand (perhaps to score their rat-trap van),U2 getting a proper thrashing in the courts, making me giggle & setting a huge president for samplers & putting Negative Land on the map for a few seconds.
Transformative work.
Re: Just In Case You Really Don't Get It -
…setting a huge president for samplers….
I think you mean “precedent.”
Re: Just In Case You Really Don't Get It -
Negativland
Re: Just In Case You Really Don't Get It -
What you describe in 1 & 2 is not “sampling”. It is “copying”. Sampling is taking SAMPLES and mixing it with other samples and/or original works.
Unclenewt – that was so beautiful, it made me cry…
Not Quite
Not sure what all your are arguing for here. Seems like there is a lot of “gray” area. Suppose I take an Ansel Adams photo and colorize it. Is that a transformative work? Suppose I take your source code and put my name on it or run it through an obfiscator. Clearly stealing. How about I take your car and put my license plate on it and get a $59 paint job. No folks, there has to be some limits and rules. We can debate what they are but not that they should be abolished.
Re: Not Quite
Actually you’re wrong, we can debate whether they should be abolished, though that’s not what anybody in this thread is advocating.
Re: Re: Not Quite
Actually you’re wrong, we can debate whether they should be abolished, though that’s not what anybody in this thread is advocating.
I wouldn’t argue that all “limits and rules” should be abolished, but I would argue that copyright should be abolished. Big difference.
sampling
@ PT
I agree with you for the most part: the unimaginative sampling taking place today, especially in hip-hop, is a trend I would like to see banished. Instantly recognizable samples (Kanye West, anyone?) generally sound like a rip-off of the original rather than inventive art.
Chopping a line out of a U2 song is only slightly better. It’s the samples you don’t recognize, I think that give “good” sampling some credibility.
^RZA and RJD2 are the best examples I can think of right now.
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.
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?
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.
It seems that people do not understand that compensation for images is how the photographer (or any other creative professional) lives. The Internet is a wonderful place to allow communication and share ideas. There is a difference between a professional and a really good student. 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.
We can do without copyrite, but are people willing to pay the hourly rate that will come into play to allow people to live from their artistic efforts rather than purchase only the rights to the creation that they wish to use?
Re: Copywrite .... Copyright
Hate to be the grammar police but perhaps the actual word has a important meaning. You want the “right” to control the use of the “copies” your images. How they are are used and how you are compensated for their use. You already physically control the use of the original. We sometimes forget this in the digital age.
You also bring up a interesting point, If I hire a photographer for their time, knowledge of photography and the use of their equipment to photograph my painting (original work of art) for use in a brochure or website. Does the photographer own the copyright to the image of my art?
You have the right to use a copywriter to write the right copy for the advertising of your photo series ‘The Rite of Spring’. English … what a wonderful language.
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.
Re: Re: Copywrite
I guess in other words this photographer should change his emphasis from creating photographs and marketing them and become yet another “wedding photographer” who charges by the hour (generically speaking).
#17 & 18: Clarification on PT's thoughts By Google Translation Engine
Just last night I was thinking about the “morality” of copyright (and patents at least in certain fields) in the 21st century. While I am still inclined to agree that authors deserve a share of whatever profits are made from commercial use of their work (although not necessarily setting prices), I see many more moral reasons against copyright, rather than for it.
At an age where anyone with a computer can have access to all the music, books and movies ever made, with zero cost to the creators for each new copy, and remix and build upon them to make new works, how can authors and governments possibly morally justify locking up all this culture from most of the world? It blocks dissemination of culture, free speech, and creativity, especially on the internet.
The same goes for pharma companies pricing life saving medications out or reach of millions and patenting methods of medical diagnostic and treatment. Or tech companies patenting basic ideas and features, instead of finished products.
Yes, IP attracts investment that makes those works and medications be made in the first place. But that compromise must at least be reworked in the 21st century. There are other ways to fund creation and research (government grants, setting up prizes, etc). Artists are finding new business models that allow them to make money without locking up their works. And tech companies are starting to realize patents hurt them more than they help them.
And yet, industry associations and many politicians keep talking about IP as if it is universally good, as if more control is always better, as if creativity and knowledge are private finite property, as if making money justifies everything!
Re: IP
Have to agree with you up to a point: the point that you suggest recording artists don’t deserve to earn a living from their creations. Just because a creation isn’t a physical object doesn’t make it any less valuable, and doesn’t give you permission to steal it. The problem is that record corps have been ripping off the public and artists alike for so long that pretty much everyone is fed up. That’s right, for every “overpaid rocker” there are a thousand others struggling to survive. So yeah, steal from Metallica – I couldn’t give a shit, but lesser-known bands deserve better than to be treated like a source of free entertainment by a generation with an unfounded sense of entitlement. If you want music to be free, move to a communist country…
Re: Re: IP
So you believe that economic reasoning is bunk?
Why do you think the masses should start paying for something that costs nothing to make? When someone downloads a song from the internet, the bits that are now on their hard drive cost NOTHING to make.
Bands that want to earn my money should do something worthy of that. When someone has a digital blob and lets me have a copy, the artist has done NOTHING for me.
If I enjoy that blob, then I’ll seek out stuff from the artist that actually does cost and pay for that (live performances, creation of new recordings for personal/corporate/commercial or public consumption, memorabilia, etc…)
Re: Re: IP
Have to agree with you up to a point: the point that you suggest recording artists don’t deserve to earn a living from their creations. Just because a creation isn’t a physical object doesn’t make it any less valuable,
**Quite True**
and doesn’t give you permission to steal it.
**No, but it DOES make it impossible to steal it**
The problem is that record corps have been ripping off the public and artists alike for so long that pretty much everyone is fed up. That’s right, for every “overpaid rocker” there are a thousand others struggling to survive. So yeah, steal from Metallica
**If I ever had the opportunity (an open van door, etc.) probably not.**
– I couldn’t give a shit, but lesser-known bands deserve better than to be treated like a source of free entertainment by a generation with an unfounded sense of entitlement. If you want music to be free, move to a communist country…
***Lesser-known bands no more deserve a free ride than does Metallica. If you like artificial constraints on production and creativity, YOU should move to a communist country…
Derivative and transformative works
I both agree and disagree. As to the way it should be handled, total agreement. As to the role of the Courts, total disagreement.
The Courts interpret the law. The legislative branch MAKES the law. In the absence of campaign finance reform, any legislator who wants to stay in power must cater to (belong to?) the people who provide campaign funds, and will make laws that the Courts are forced to interpret in ways that are very much against the intent of the Constitution, but satisfy the people who dole out campaign money.
Re: Derivative and transformative works
Very inefficient – huh.
The best politicians money can buy.
You left out the part where a bad law stays on the books for years, screwing up lots of stuff, until someone with enough money says screw this and takes it to the Supreme Court where it may or may not be resolved.
Re: Re: Derivative and transformative works
You left out the part where a bad law stays on the books for years, screwing up lots of stuff, until someone with enough money says screw this and takes it to the Supreme Court where it may or may not be resolved.
The Supreme Court does not have the authority to invalidate a “bad” law. It only has the authority to invalidate an unconstitutional law. So unless you can prove that the current copyright law somehow violates the Constitution (and not through some half-baked theory that copyright is immoral), then you will find no remedy through the Supreme Court.
If you don’t like copyright law because you think it is imprudent, then you need to elect Congressmen who will listen to you and agree with you.
Re: Re: Re: Derivative and transformative works
I would venture to guess that many of the actions taken in the name of copyright protection, enforcement, whatever could be considered unconstitutional. I do not think I need to itemize the transgressions for you.
Copyright and Sampling
Copyright law today is horribly, horribly broken. It’s plain for all to see that it has been twisted and contorted so much that it no longer serves its original purpose. I’m sure everyone is familiar with this line from the United States Constitution, “To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” Please read that line again. Read it slowly and then think about copyright in the news.
DVDs that can’t be released because of music licensing issues.
RIAA suing kids for sharing a few songs.
Home videos removed from YouTube because of a song playing in the background.
Lawsuits about image thumbnails in search engines and web sites linking to other web sites.
Copyright has become the get rich scheme of the century, it’s become a bludgeon to pound one’s competition senseless in court. It’s used as a gag to silence one’s critics. It seems it’s being used for everything except what it was originally intended for, “promote the Progress of Science and useful Arts”.
There is a lot of confusion over sampling, and fair use. In my poem above I sampled the first line from Longfellow’s, The Midnight Ride of Paul Revere. I also tried to keep the same theme and meter.(Thanks for the compliments! I hacked it pretty badly though.)This is most certainly an example of fair use. Using the idea of another, building upon it and creating a new work. Also, hopefully enriching some of your lives by directing you to an author I admire.
Sampling. Really, what’s the difference if you record a few seconds from some songs and create a new work, or copy some guitar riffs and play them in a new song? They’re both samples, one is recorded the other is played live. The blues were mentioned, or how about jazz? Both based on sampling and improvisation. What about Obama’s poster? A work was sampled and a new work was made, simple. So unless it’s outright blatant plagiarism both artists profit from the new work.
Yes we need copyright, but life of the author plus an additional 70 years is just insane.
Thanks,
unclenewt
P.S. I claim no copyright on my poem. I place it into the public domain. Although if I did and I live another 40 years(hopefully), the copyright would expire in 2119. Ridiculous huh?
Re: Copyright and Sampling
Why do “we need copyright”?
If artists had models where they were paid for the production of their works, rather than leveraging the distribution of ZERO COST items, there would be no need to worry about whether someone was ripping off their works or not.
If someone took a U2 album, slapped “Joe Bloe” on it, and distributed it (for free), it wouldn’t take long for people to determine that “Joe Bloe” did not create that work. (Unless Joe Bloe was truly talented…but then Joe would simply create their own album to begin with?)
Artists Rights / Intellectual Property / Foundation Syndicate
Important issues raised here.
The “INTERCINE MATRIX” website deals with the systematic destruction of a viable culture in Cleveland, Ohio and replaces it with a foundation syndicate that forms a ‘green mafia’ to monopolizes and capitalize on the corrupt government to deal out millions in payola and grants to bogus their non-profit organizations.
It seems completely insane to me
My brother is a professional jazz musician, he’s in a number of bands and has released a number of albums, amazingly he is actually able to support him self doing this.
He recently wrote a song that was based on another song(sorry can’t remember the name right now), when he later did research in to that song he discovered that it had a 160year historical connection to another song. The two songs sound completely different, but there is a 160years of derivative works that have transformed one song in to another. It seems completely insane to me for someone to claim ownership of a song and prevent people from modifying it.
Re: It seems completely insane to me
“It seems completely insane to me for someone to claim ownership of a song and prevent people from modifying it.”
Capitalism run amok.
Re: Re: It seems completely insane to me
“It seems completely insane to me for someone to claim ownership of a song and prevent people from modifying it.”
Capitalism run amok.
-Hardly. That’s government intervention.-
art = (artist + (poducer+lawyer)x2)
was a time when art was artist + show = public satisfaction, artist well being
today show = art – (public frustration to get entertainment)
see for art the subject
all this is bullshit. any artist out there worth a shit shouldnt be worried about getting payed. they should be doing their art because it makes them happy and is a release for them. if they happen to get paid by someone for it then so be it. but they should no be going out and expecting money from everything they do.
i can see a problem if someone blatantly rips off the original in entirety and turns around just to make money off of it. that is wrong. but all this sampling/derivitive/transformative or whatever it is should be fine.
real art should be done from the heart for only one reason, for the artist. if people like it then so be it.
also...
if someone steals your work and makes a change to it and makes money, then maybe their work is better than the original and they deserve the money.
Seems to me there are two possible outcomes as copyright becomes more and more stringent:
1. Innovation grinds to a halt
-or-
2. Major public backlash against the old order
My bet is on #1.
I pretty much agree with this authors analysis
Intellectual property law is a ponzi scheme.
I will tell you what I know as long as I get a cut of what the next person pays you for telling them what I know. ( or music I saw or movie I enjoyed )
Eventually the scheme collapses.
Viva La Internet !