Legal Commentary

Copyright - derivative vs transformative works

By David Canton

Techdirt has a post that refers to a Wall Street journal article entitled Color This Area of the Law Gray  that talks about artists being inspired by the works of others.  It explores the concept of how different something has to be to be from an existing work to be non-infringing.  In other words, when is something transformative vs stealing.

That line is not always easy to define at law.  The WSJ article talks both about what the law says, and what the policy ought to be.

It starts by saying:

Beauty, it is often said, is in the eye of the beholder, and so might be copyright infringement. Artist Richard Prince never denied that he made use of some photographic images he found in a 2000 book by Patrick Cariou called “Yes Rasta,” documenting the community of Rastafarians the French photographer encountered in the mountains of Jamaica, for collage paintings that were exhibited last fall at New York’s Gagosian Gallery and reproduced in a book published by Rizzoli. The question is whether Mr. Prince’s use of these images was “transformative” — borrowing in the process of creating something entirely new — or just stealing. A lawsuit filed by Mr. Cariou in New York District Court in late December against the appropriationist Mr. Prince — as such artists are known — likely will be one more front in the battle over what constitutes copyright infringement in these days of “sampling” and point-and-click downloading.

Techdirt’s position is:

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.”

Full post as published by eLegal Canton on February 03, 2009 (boomark / email).