To look at Picasso’s drawings is to better understand his paintings as something greater than Picasso, an artistic vision based on imitation and purloined art. If we look beyond the artist, we might actually see his art and access his creative process without the shadow and burden of Picasso’s name getting in the way. We might call what Picasso created “invention” or “reinvention,” but it is hard to look at these drawings and not have a sense that so much of what we call originality relies on a good deal of imitation and even a bit of theft.

Her idea is that, because of changes brought on by technology and the Internet, our notion of the genius—a romantic, isolated figure—is outdated. An updated notion of genius would have to center around one’s mastery of information and its dissemination. Perloff has coined another term, “moving information,” to signify both the act of pushing language around as well as the act of being emotionally moved by that process. She posits that today’s writer resembles more a programmer than a tortured genius, brilliantly conceptualizing, constructing, executing, and maintaining a writing machine.

Perloff’s notion of unoriginal genius should not be seen merely as a theoretical conceit but rather as a realized writing practice, one that dates back to the early part of the 20th century, embodying an ethos in which the construction or conception of a text is as important as what the text says or does. Think, for example, of the collated, note-taking practice of Walter Benjamin’s Arcades Project or the mathematically driven constraint-based works by Oulipo, a group of writers and mathematicians. (hyperlinks added)

Even more interesting, however, is what Smith did. He’s taught a class at the University of Pennsylvania he calls “Uncreative Writing.”

In it, students are penalized for showing any shred of originality and creativity. Instead they are rewarded for plagiarism, identity theft, repurposing papers, patchwriting, sampling, plundering, and stealing. Not surprisingly, they thrive. Suddenly what they’ve surreptitiously become expert at is brought out into the open and explored in a safe environment, reframed in terms of responsibility instead of recklessness.

We retype documents and transcribe audio clips. We make small changes to Wikipedia pages (changing an “a” to “an” or inserting an extra space between words). We hold classes in chat rooms, and entire semesters are spent exclusively in Second Life. Each semester, for their final paper, I have them purchase a term paper from an online paper mill and sign their name to it, surely the most forbidden action in all of academia. Students then must get up and present the paper to the class as if they wrote it themselves, defending it from attacks by the other students. What paper did they choose? Is it possible to defend something you didn’t write? Something, perhaps, you don’t agree with? Convince us.

All this, of course, is technology-driven. When the students arrive in class, they are told that they must have their laptops open and connected. And so we have a glimpse into the future. And after seeing what the spectacular results of this are, how completely engaged and democratic the classroom is, I am more convinced that I can never go back to a traditional classroom pedagogy. I learn more from the students than they can ever learn from me. The role of the professor now is part party host, part traffic cop, full-time enabler.

The secret: the suppression of self-expression is impossible. Even when we do something as seemingly “uncreative” as retyping a few pages, we express ourselves in a variety of ways. The act of choosing and reframing tells us as much about ourselves as our story about our mother’s cancer operation. It’s just that we’ve never been taught to value such choices.

After a semester of my forcibly suppressing a student’s “creativity” by making her plagiarize and transcribe, she will tell me how disappointed she was because, in fact, what we had accomplished was not uncreative at all; by not being “creative,” she had produced the most creative body of work in her life. By taking an opposite approach to creativity—the most trite, overused, and ill-defined concept in a writer’s training—she had emerged renewed and rejuvenated, on fire and in love again with writing.

Smith has thus provided another instance of what I already know in a different context — there are more and less original legal writers even though legal writing is one vast collaborative writing enterprise consisting primarily of texts cobbled together from pieces of other legal texts.

Finally, Smith suggests that the insights he provides (which he would no more claim are original to him than I would claim them mine) have been largely resisted in one profoundly important world of writing: literature:

I’m sensing that literature—infinite in its potential of ranges and expressions—is in a rut, tending to hit the same note again and again, confining itself to the narrowest of spectrums, resulting in a practice that has fallen out of step and is unable to take part in arguably the most vital and exciting cultural discourses of our time. I find this to be a profoundly sad moment—and a great lost opportunity for literary creativity to revitalize itself in ways it hasn’t imagined.

Perhaps one reason writing is stuck might be the way creative writing is taught. In regard to the many sophisticated ideas concerning media, identity, and sampling developed over the past century, books about how to be a creative writer have relied on clichéd notions of what it means to be “creative.” These books are peppered with advice like: “A creative writer is an explorer, a groundbreaker. Creative writing allows you to chart your own course and boldly go where no one has gone before.” Or, ignoring giants like de Certeau, Cage, and Warhol, they suggest that “creative writing is liberation from the constraints of everyday life.”

As John Pareles wrote in “Plagiarism in Dylan, or a Cultural Collage?”, Bob Dylan is another one of those giants leading the way:

The absolutely original artist is an extremely rare and possibly imaginary creature, living in some isolated habitat where no previous works or traditions have left any impression. Like virtually every artist, Mr. Dylan carries on a continuing conversation with the past. He’s reacting to all that culture and history offer, not pretending they don’t exist. Admiration and iconoclasm, argument and extension, emulation and mockery — that’s how individual artists and the arts themselves evolve. It’s a process that is neatly summed up in Mr. Dylan’s album title ” ‘Love and Theft,’ ” which itself is a quotation from a book on minstrelsy by Eric Lott.

Of course, literature has not completely ignored these artistic trends. The group of authors comprising Oulipo were exemplars of what Smith might call “writers as programmers,” and Donald Barthelme wrote:

The principle of collage is the central principle of all art in the Twentieth Century.

And, believe me: if you’ve never read Georges Perec or Barthelme, you’ve never read anything like what they’ve written. Or maybe you have.

Sounds can bring back memories. Some samples remind the listener of a particular era, or connect a song with a particular moment in time. Artists want to transport themselves, and the listener, for nostalgic reasons—or to provide historical resonance. Sampling can function like an audio time machine.

McLeod also articulates a point I have made over and over again: that our conventional notions of “authorship” as the creation of wholly original art from the mind of an inspired genius is not at all consistent with the reality of artistic creation:

The old-school notion of the individual genius author is embedded in European and American copyright law—the lone individual genius toiling away until a burst of creativity creates a truly original work unlike anything else that previously exists. But we know that, in the world of music, you can’t really create a new song without referring to an old song in some way. So the law itself assumes a Romantic notion of authorship, though we know this isn’t how culture is produced. Culture is collaborative.

The entire interview is worthwhile. It covers a wide range of matters relevant to these issues and is especially informative on the history of the music industry’s ways of dealing with sampling.

[T]he key bit is that the court rejected the fair use defense because, as Artnet’s Walter Robinson puts it, “Prince’s works do not specifically comment on Cariou’s originals.” (Robinson says: “Face it, the notion of ‘appropriation’ just doesn’t play well in our law courts.”) The NYT’s Randy Kennedy writes that “Judge Batts wrote that for fair-use exceptions to apply, a new work of art must be transformative in the sense that it must ‘in some way comment on, relate to the historical context of, or critically refer back to the original works’ it borrows from.”

That hasn’t always seemed to be a requirement in other fair use cases. In Blanch v. Koons, for example, the Second Circuit noted that Koons used “Blanch’s image as fodder for his commentary on the social and aesthetic consequences of mass media” (rather than, as Judge Batts would seem to require, fodder for his commentary on Blanch’s image). Quoting the Supreme Court’s Campbell decision, the court said the test of transformativeness is whether the later work “adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.”

As I wrote the other day, I think the “key” element in the case is the evidence that Cariou had (and that the court apparently found credible) that he had been directly damaged by the appropriation. Cariou had been negotiating with a Manhattan gallery owner for a show of his Yes Rasta photographs when the Gagosian Gallery began showing Prince’s works that appropriated Cariou’s photographs. As a result, the gallery owner considering a show for Cariou’s works backed off, because “she did not want to exhibit work which had been “done already” at another gallery. Slip op. at 6-7. In other words, Prince’s work essentially was functioning as a direct market substitute for Cariou’s work.

That is a far cry from the situation in Blanch v. Koons, in which the Second Circuit Court of Appeals held that Jeff Koons’ appropriation of a photograph in a collage constituted fair use. There was no reason in Blanch to believe that Koons’ work in any way damaged any market for the appropriated photograph.

Moreover, Cariou’s case does not and cannot conceivably be interpreted to overturn Blanch, in which, as Zaretsky correctly notes, the Second Circuit approved Koons’ use of “‘Blanch’s image as fodder for his commentary on the social and aesthetic consequences of mass media’ (rather than, as Judge Batts would seem to require, fodder for his commentary on Blanch’s image).”

Judge Batts’ apparent belief that in order to be sufficiently transformative to qualify as fair use an artistic appropriation must comment on or otherwise refer back to the appropriated work is certainly open to question even apart from the unquestionable continuing vitality of Blanch. The proposition that an appropriation must comment on the original to constitute fair use originates in commentary on Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569,  (1994), in which the Supreme Court held that 2 Live Crew’s appropriation of Roy Orbison’s Oh, Pretty Woman was a non-infringing fair use. While the Court did stress the ways in which 2 Live Crew’s reworking of the song “parodied” Oh, Pretty Woman, I think it is worth wondering whether one’s principal reaction to 2 Live Crew’s song is that it is making fun of Orbison’s song. More importantly, Justice Souter, writing for the Court, emphasized that the less an appropriating work damages the market for the original work it appropriates, the less it needs to reflect directly back on the original to the degree to constitute a non-infringing fair use:

A parody that more loosely targets an original than the parody presented here may still be sufficiently aimed at an original work to come within our analysis of parody. If a parody whose wide dissemination in the market runs the risk of serving as a substitute for the original or licensed derivatives (see infra, discussing factor four), it is more incumbent on one claiming fair use to establish the extent of transformation and the parody’s critical relationship to the original. By contrast, when there is little or no risk of market substitution, whether because of the large extent of transformation of the earlier work, the new work’s minimal distribution in the market, the small extent to which it borrows from an original, or other factors, taking parodic aim at an original is a less critical factor in the analysis, and looser forms of parody may be found to be fair use, as may satire with lesser justification for the borrowing than would otherwise be required.

Id. at 580, n. 14. And, indeed, this understanding fits perfectly the decision in Blanch, in which it would be absurd to suggest that Jeff Koons was parodying the specific photograph he appropriated rather than using it to comment on the worlds of commercial and fashion photography in general:

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. 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.’” When, as here, the copyrighted work is used as “raw material,” in the furtherance of distinct creative or communicative objectives, the use is transformative.

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.”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.

Blanch v. Koons, at 467 F.3d at 252-53.

I think it is crucial to remain cognizant of the fact that the case law establishes that there can be transformative use of copyrighted work in art other than art that ridicules copyrighted work. I have gone on at great length on this blog about the ways our conventional notions of authorship are too narrow and historically ignorant. But Ray Down is downright eloquent on the ways these issues pertain to art over at his Copyright Litigation Blog in connection, specifically, with Richard Prince. His entire post, with helpful illustrations, is well worth your read. Here’s an excerpt:

Fine art, truly fine art in an art gallery, is a place where a copyrighted work becomes a fetish object, a tribute, a decontextualized thing revealing a new meaning. The urinal of Marcel Duchamp. The Brillo Box of Andy Warhol. Both utilitarian objects made by others and fetishized by the artists.

And look at L.H.O.O.Q. – nothing original in the execution, but the Mona Lisa was in the public domain at the time. Prince is blatantly stealing. Plagiarists take the words of others and try to make you believe that they have crafted them. But Prince’s cutouts from advertising, porn and outlaw biker magazines never misled the consumer.

But somewhere, something bothers me about shutting a highly respected fine artist down completely and burning his works when the first sale doctrine would permit him to buy a copy, modify it and resell it. When the First Amendment lets even repulsive speech be heard and the contemporary art world says it is art, I have a problem with the government burning it.

To me, an original work of fine art properly labeled as such by a new artist is almost pure speech – or in some way pure idea – even if it includes major appropriations. Things change when the artwork is widely reproduced. When the consumers are paying tens of thousands for Prince to take something no one is interested in, put his spin on it, and add value. Prince’s “appropriation” added ten million dollars worth of value to a pile of books. Everyone knew he didn’t create the original.

This is not a question of consumers being defrauded, these are wealthy ultrasophisticates on the cutting edge who are the purchasers – surrounded by the top art advisers and critics -if these people feel that Prince’s value added is that great, what is the harm in letting them indulge, as long as Prince legally purchased the original books? In fact, Prince’s prices will probably soar – scarcity and scandal drive art prices up.

From a semiotic perspective, isn’t Prince simply holding up a mirror to people who may not want to look at themselves or their art as art in the hands of another? And if your message is mirror-like, is it less valid? And if you don’t have the verbal skills to articulate what you are doing, is that any less a mirror?

In short, I think Dowd is right, but I also think the death knell of non-parodic appropriation is being rung without reason. Finally, I think that if Cariou convinced the court that Prince’s appropriations robbed Cariou of real opportunities to sell his photographs, the outcome of Cariou’s case is obviously correct and does not threaten the kind of appropriation case people like Zaretsky, Dowd, and I talk about when we talk about appropriation by the likes of Prince, Koons, and Shepard Fairey.

I should say, also, that with the whole idea of a divided city there are analogies in the real world, as well as precursors within fantastic fiction. C. J. Cherryh wrote a book that had a divided city like that, in some ways, as did Jack Vance. Now I didn’t know this at the time, but I’m also not getting my knickers in a twist about it. If you think what you’re trying to do is come up with a really original idea—one that absolutely no one has ever had before—you’re just kidding yourself.

You’re inevitably going to tread the ground that the greats have trodden before, and that’s fine. It simply depends on what you’re able to do with it.

That indeed is where artistic genius resides — not in the originality of the thought, but in what the artist does with the thought.