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because of changes brought on by technology and the Internet, our notion of the genius—a romantic, isolated figure—is outdated.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.

Koons scanned the image of “Silk Sandals” into his computer and incorporated a version of the scanned image into [his painting entitled] “Niagara.” He included in the painting [pictured at left] only the legs and feet from the photograph, discarding the background of the airplane cabin and the man’s lap on which the legs rest. Koons inverted the orientation of the legs so that they dangle vertically downward above the other elements of “Niagara” rather than slant upward at a 45-degree angle as they appear in the photograph. He added a heel to one of the feet and modified the photograph’s coloring. The legs from “Silk Sandals” are second from the left among the four pairs of legs that form the focal images of “Niagara.” Koons did not seek permission from Blanch or anyone else before using the image

Koons was paid $126,877 for “Niagra.” Allure had paid Blanch $750 for “Silk Sandals.” In addressing whether Koons’ appropriation of “Silk Sandals” was fair use or a copyright infringement, the court highlighted the fact that answering this question requires balancing the conflicting interests in protecting the “intellectual property” rights of creators and protecting the freedom of expression, including referencing the works of others in new works of creation:

Copyright law thus must address the inevitable tension between the property rights it establishes in creative works, which must be protected up to a point, and the ability of authors, artists, and the rest of us to express them — or ourselves by reference to the works of others, which must be protected up to a point. The fair-use doctrine mediates between the two sets of interests, determining where each set of interests ceases to control.

At the heart of the fair use analysis is the nature of the allegedly infringing work. As the 2d Circuit notes, it considers with respect to this factor whether the work is “transformative” — that is, whether it adds something new to the original work so that it stands on its own as an original work of creation. The court thus quoted the Supreme Court’s decision in Campbell v. Acuff Rose Music, 510 U.S. 569 (1994):

The central purpose of this investigation is to see, in Justice Story’s words, whether the new work 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 …, in other words, whether and to what extent the new work is “transformative.” Although such transformative use is not absolutely necessary for a finding of fair use, the goal of copyright, to promote science and the arts, is generally furthered by the creation of transformative works. Such transformative works thus lie at the heart of the fair use doctrine’s guarantee of breathing space …. Campbell, 510 U.S. at 579, 114 S.Ct. 1164(citations omitted).

The court’s conclusion that “Niagra” is genuinely transformative in its use of “Silk Stockings” is worth quoting almost in its entirety (citations omitted) because it is the very heart of the decision to find in favor of Koons:

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 ¶ 4 (“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. 

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.

The court also noted that in Campbell the Supreme Court had rejected the notion that a”the commercial nature of [a] use could by itself be a dispositive consideration. The Campbell opinion observes that ‘nearly all of the illustrative uses listed in the preamble paragraph of § 107 [setting forth the fair use test], including news reporting, comment, criticism, teaching, scholarship, and research … “are generally conducted for profit.”‘” Thus, the “‘more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.’” (Quoting NXIVM Corp. v. Ross Inst., 364 F.3d 471 (2d Cir.2004)). Moreover, since “Niagra” is “‘substantially transformative, the significance of other factors, [including] commercialism, are of [less significance],’ [w]e therefore ‘discount[] the secondary commercial nature of the use.’” (citations omitted.)

I by no means would suggest that Blanch is so obviously on point in all respects that it requires the court hearing the Fairey v. AP case to find in favor of Fairey. But it certainly is quite meaningful in that respect. If only because of the tremendous resonance the Obama Hope poster had in the course of the 2008 presidential, a resonance that would have been inconceivable had the poster substituted Garcia’s photo for Fairey’s reworking of that source material, it seems at the very least quite arguable that Fairey’s reworking of the photo meets the 2d Circuit’s test of a transformative work — one that “adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.”

Blanch also makes clear that it is of no moment that, Dan Heller’s assertions notwithstanding, Fairey’s work (1) was intended to convey a message, (2) was intended to “make a buck.”

It also makes plain that Heller is just plain misunderstanding the law when he states that “you cannot misappropriate someone’s likeness or their property without their consent.” (Emphasis in Heller’s original.) Koons neither sought nor received Blanch’s consent to use her photograph. Koons plainly made more than a buck in the transaction. And the fact that Koons’ message might have been a commentary on the world of “mass communication” does not seem any more worthy of fair use analysis even if we do assume, as does Heller, that Fairey’s poster was “merely” a piece of political advocacy. Finally, there is no applicable “right of publicity” that Fairey violated in appropriating Obama’s image (nor does the Associated Press or its photographer, Manny Garcia, have any right to assert any right of publicity Obama hypothetically could enjoy on his behalf).

ADDENDUM: J O’Shea on Shepard Fairey and the Art of Appropriation.

This book contains hundreds of quotations that go unacknowledged in the body of the text. I’m trying to regain a freedomthat writers from Montaigne to Burroughs took for granted and that we have lost. Your uncertainty about whose words you’ve just read is not a bug but a feature.

A major focus of Reality Hunger is appropriation and plagiarism and what these terms mean. I can hardly treat the topic deeply without engaging in it. That would be like writing a book about lying and not being permitted to lie in it. Or writing a book about destroying capitalism, but being told it can’t be published because it might harm the publishing industry.

Mr. Shields, of course, is not original. Just check out Jonathan Lethem’ s essay “The Ecstasy of Influence: A Plagiarism.”

Or my piece, wholly indebted to Lethem,  entitled “Appropriation.”

Or David Markson, in Vanishing Point (at page 12): “Nonlinear. Discontinuous. Collage-like. An assemblage. As is already more than self-evident.”