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; . . .

If you can’t say it clearly, you aren’t thinking it clearly.

At Language Log, Geoffrey K. Pullum makes a crucial point in criticizing Sarah Palin’s inchoherence:

I think being so utterly unable to explain what one wants to say is truly and reasonably regarded as a defect in one’s qualifications for office – partly because being so inept at talking in a controlled and sensible way strongly suggests that there was no sensible thought back there, and partly because even if there were sensible thoughts back there somewhere, a leader needs to be more skilled at articulating them.

I suppose I’d qualify Mr. Pullum’s statement in one way — where there’s incoherence, there rarely are sensible thoughts, even allowing for the ungrammatical nature of a lot of spoken language,

In short, if you cannot write or speak your thoughts coherently, you don’t have coherent thoughts. Think about it. How often have you heard a lecture, thought how much brilliance was there, and then gone home to write down notes embodying that brilliance, only to find out that there are gaps and fallacies filling spaces that must be filled if the brilliance is to persist?

If you can’t say it, you don’t know it. On this point, Malcolm Gladwell’s Blink has been widely misinterpreted (and was perhaps intended) as a brief in favor of gut feeling over analysis. I think, given the compelling examples he writes about, that Gladwell’s thesis would better be stated as follows: the gut feelings of people well trained and experienced in a field are often better than analysis. There is a huge difference between the gut feelings of hockey moms untrained in tax or foreign policy and hockey moms trained in tax and foreign policy when it comes to opining on tax and foreign policy. Richard Posner’s review of Blink explains (emphasis and hyperlink added) my point well:

As Exhibit A for the superiority of intuitive to articulate thinking, Gladwell offers the case of a purported ancient Greek statue that was offered to the Getty Museum for $10 million. Months of careful study by a geologist (to determine the age of the statue) and by the museum’s lawyers (to trace the statue’s provenance) convinced the museum that it was genuine. But when historians of ancient art looked at it, they experienced an “intuitive revulsion,” and indeed it was eventually proved to be a fake.

The example is actually a bad one for Gladwell’s point, though it is a good illustration of the weakness of this book, which is a series of loosely connected anecdotes, rich in “human interest” particulars but poor in analysis. . . .

But back to the case of the Greek statue. It illustrates not the difference between intuitive thinking and articulate thinking, but different articulate methods of determining the authenticity of a work of art. One method is to trace the chain of title, ideally back to the artist himself (impossible in this case); another is to perform chemical tests on the material of the work; and a third is to compare the appearance of the work to that of works of art known to be authentic. The fact that the first two methods happened to take longer in the particular case of the Getty statue is happenstance. Had the seller produced a bill of sale from Phidias to Cleopatra, or the chemist noticed that the statue was made out of plastic rather than marble, the fake would have been detected in the blink of an eye. Conversely, had the statue looked more like authentic statues of its type, the art historians might have had to conduct a painstakingly detailed comparison of each feature of the work with the corresponding features of authentic works. Thus the speed with which the historians spotted this particular fake is irrelevant to Gladwell’s thesis. Practice may not make perfect, but it enables an experienced person to arrive at conclusions more quickly than a neophyte. The expert’s snap judgment is the result of a deliberative process made unconscious through habituation.

Language abuse is posing an existential threat to those around me.

Perhaps it’s being reminded recently to re-read “Politics and the English Language.”  Perhaps it’s journalism’s daily abuse of our language.  Perhaps it’s the despair peculiar to mid-November of the first semester of law school, when students have realized they have learned a lot and, understandably, given the enormous effort they’ve made over the last three months to accomplish that learning, let up, forgetting what I’ve been telling them for those three months: it will be many, many years before they feel in their guts they’re really good at expressing themselves as lawyers and understanding other lawyers.  Perhaps it’s the letter a friend received from her mortgage lender making a sincere and pathetic effort to explain to a human being what it could do for her under the federal government’s recent “baiiout” plan.  Perhaps it’s reading of Malcolm Gladwell’s most recent best-selling insight — it takes 10,000 hours of practice for anyone to become really good at anything — and realizing that maybe it takes 10,000 hours of practice to become a really good legal writer.  Perhaps it’s realizing again, for the thousandth time, that lawyers really do often use their skill with language to obscure and deceive.

At any rate, I am suffering from the cynicism Orwell in that essay mentioned in the first sentence above argues against:

Most people who bother with the matter at all would admit that the English language is in a bad way, but it is generally assumed that we cannot by conscious action do anything about it. Our civilization is decadent and our language — so the argument runs — must inevitably share in the general collapse. It follows that any struggle against the abuse of language is a sentimental archaism, like preferring candles to electric light or hansom cabs to aeroplanes. Underneath this lies the half-conscious belief that language is a natural growth and not an instrument which we shape for our own purposes.

Can we at least agree on one thing?  Can we stop using the term “existential threat” to refer to a threat that poses a genuine risk of destroying someone or something’s very existence?  As in:

Iran poses an existential threat to Israel.

The Soviet Union during the Cold War posed an existential threat to the United States.

Islamofascism poses an existential threat to Western democratic capitalism.

The term “existential threat” hides the real question — how much of a threat? — behind the idea that if something poses a threat to one’s very existence it is as bad as a threat gets.

Maybe it’s just that I started writing this post at 4am, which I’ve heard is “the new midnight.”