Requiring licenses for artistic appropriation has nothing to with providing incentives to create.

I’ve been pretty passionate in this blog in expressing my belief that art that appropriates copyrighted work does not infringe the copyrighted work provided the new work stands sufficiently on its own as a creative work. To stand on its own in that way, the new work is one that isn’t attracting an audience merely because of its appropriation of the earlier work. The fact it uses the the copyrighted work to convey meaning through the use of symbols and allusions is no different than the way new, original art has always used the meaning culture attributes to earlier work. Art builds on art.

The counter-argument to my position is that artists need to make money to be able to create art, and if an appropriator can pay for a license, why shouldn’t he? First, merely asking for a license is not the same as obtaining one. Second, the most meaningful pieces of art in our culture are the most successful, and licenses for the use of those works are not likely to be within the financial means of most artists. Third, why should you have to ask for a license to make something new from something someone already has made money from (or as much as their work earned in the market)?

But now Malcolm Gladwell goes right to the heart of the most compelling argument copyright holders have against un-licensed appropriation — that the financial remuneration is an incentive necessary to the creation of art in the first place. Gladwell writes:

Dan Pink is best known for a number of really insightful business books, including “A Whole New Mind.” In “Drive,” he tackles the question of what motivates people to do innovative work, and his jumping-off point is the academic work done over the past few decades that consistently shows that financial rewards hinder creativity. These studies have been around for a while. But Pink follows through on their implications in a way that is provocative and fascinating. The way we structure organizations and innovation, after all, almost always assumes that the prospect of financial reward is the prime human motivator. We think that the more we pay people, the better results we’ll get. But what if that isn’t true? What the research shows, instead, is that the great wellspring of creativity is intrinsic motivation—that is, I do my best work for personal rewards (out of love or intellectual fulfillment) and not external motivation (money).

Maybe you don’t think much of this blog, but I’ve written it now for 18 months and haven’t seen a penny in return. The best writers I know scramble to make their livings through their writing, teaching, parlaying their writing into other creative projects, and whatever else can come their way. I’ve known artists my entire life. I’ve known a few who’ve had vast success, but they are a tiny, tiny minority. The artists I know won’t stop creating if they’re not paid for transformative appropriations of their works.

Article 1, Section 8 of the U.S. Constitution sets for the basis of Congressional power to create laws to protect copyright. It states:

The Congress shall have Power . . . 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; . . . (emphasis added).

It does not state:

The Congress shall have the Power . . . To further the capacity of authors and inventors to extract any and all value that exists in their creations, by securing for a time in excess of the lifetimes of these Authors and Inventors the exclusive right to their respective writings and discoveries; . . .