Literature is theft.

Plagiarism is a puzzling vice. No writer, if he or she were honest about it, would ever deny that, when they come across a good thing in someone else’s work, consciously or unconsciously they store it up for a rainy day. “Literature,” the American journalist James Atlas likes to say, “is theft.” He’s right. The history of books and writing supports this provocative assertion to the hilt.

[I borrowed that.]

“Authorship is rarely a simple question.” — Architecture this time

I’ve written before that it boggles my mind when people write seriously that legal documents that duplicate others might constitute copyright violations. Originality is not of any value in a legal document — the document’s effectiveness in accomplishing its purpose is all that matters. Moreover, as I’ve also mentioned, legal writing is a quintessentially collaborative enterprise. Of course, law is not unique in this regard. In the course of finishing up a paper on the nature of a judge as an “author,” I came across a story from the New York Times written in 2005 about why accusations of plagiarism by architects rarely make it to court. Guess what? Architecture too is largely a collaborative enterprise. As the story states:

One reason accusations of plagiarism [between architects] rarely make it to court is that architecture, despite the romantic image of the solitary genius, is largely a collaborative pursuit. Principal, project architect, project designer and outside consultants of all stripes contribute to a design. All the while, young architects move from firm to firm, spreading ideas and sometimes eventually opening their own, competing offices. As for student architects, well, just because they don’t get paid for their work doesn’t mean it never enters the commercial arena. There’s so much rich activity going on at the schools,” said Bill Sharples of the Manhattan firm SHoP/Sharples Holden Pasquarelli, ‘it’s hard not to be influenced by it.’ With so many influences and so many echoes, authorship is rarely a simple question.”

Ideas, originality, and copyright. Coldplay accused of infringement again.

One of these days we’ll learn what the KLF long ago tried to teach us about pop music: “Every Number One song ever written is only made up from bits from other songs. There is no lost chord. No changes untried. No extra notes to the scale or hidden beats to the bar. There is no point in searching for originality.”

Let’s get a basic point straight: copyright does not protect an idea. As the U.S. Copyright Office puts it: “Copyright does not protect facts, ideas, systems, or methods of operation, although it may protect the way these things are expressed. See Circular 1, Copyright Basics, section ‘What Works Are Protected.’”

So it may be true, as Consequence of Sound reports, that “just days after settling with Joe Satriani over plagiarism allegations, [Coldplay] is now being accused of copyright violations by UK musician Andy J. Gallagher for borrowing from Gallagher’s “Something Else” video with their video for ‘Strawberry Swing.’” But being accused of copyright violations and having those accusations deemed worthy of anything other than contempt are two entirely different things. As the Guardian explains, “there’s no doubt that [Gallagher's] and Coldplay’s music videos offer ‘an awful lot of similarities’. Or rather, one big similarity: they both show people interacting with animated chalk-boards.” And it may even be true that, as Gallagher complains, it seems “less than fair that [Coldplay's] video will win numerous awards and receive industry praise when [Gallagher's] director Owen Trevor had the idea the year before.”

But the answer is: so what? You cannot copyright the idea of a video involving people interacting with animated chalk-boards. As the producers of Coldplay’s video point out (pdf), the idea was hardly original with Gallagher. Nor do they claim originality; rather, they claim to have worked hard at making the Coldplay video:

We’re aware of those videos, and I don’t wish to denigrate them, but we thought there was more mileage in the technique than they had explored. We never claim to be original, just rigorous. So we wrote a story we thought would be entertaining and went about making it. It was a lot of hard work.

The specific video they produced may be original, but it hardly precludes anyone else from making videos involving people interacting with animated chalk boards.

James Boyle: “A Song’s Tale: Mashups, Borrowing, and the Law”

Professor James Boyle lectures on the 199 year history of a song protesting the government’s inept response after Hurricane Katrina, tracing its sources back over 100 years through the work of, among others, Kanye West, Ray Charles, and Clara Ward. Each (I’m shocked, shocked) of these musicians borrowed from the music of others before them, yet they borrowed in different ways, under different legal rules, in a different musical culture. Their music was shaped, for better and worse, by those constraints. At the end of the 100 year journey, we can have a sense of how the music of the future may be shaped, and of what our musical culture will give up in the process.

We are very confused about the difference between similarity and illicit copying. Down Under and Kookaburra this time.

Another in a long line of this type of case: Larrikin Music is suing for compensation from royalties earned by Men at Work, alleging that the distinctive flute riff in “Down Under” was copied from the refrain of a 1934 children’s tune, “Kookaburra Sits in the Old Gum Tree.” As I suggest in the post liked to above (as well as many others on this blog), one has to ask these questions: Do our markets reward plagiarism, or are we confused in believing that an artist or author only has rights in his work if his work is unique? And if an artist does have rights to work that is derivative (as I believe most creative work is), don’t appropriators (collage artists, musicians who create “aural collages” by weaving together samples of copyrighted recordings) also have rights in their works?

Without borrowing, stealing, cribbing, remixing, mashing-up, collaging and compiling – without influences great and small, in other words – there is no “creating.”

From Jonathan Lethem, “The Ecstasy of Influence: A Plagiarism“:

In a courtroom scene from The Simpsons that has since entered into the television canon, an argument over the ownership of the animated characters Itchy and Scratchy rapidly escalates into an existential debate on the very nature of cartoons. “Animation is built on plagiarism!” declares the show’s hot-tempered cartoon-producer-within-a-cartoon, Roger Meyers Jr. “You take away our right to steal ideas, where are they going to come from?” If nostalgic cartoonists had never borrowed from Fritz the Cat, there would be no Ren & Stimpy Show; without the Rankin/Bass and Charlie Brown Christmas specials, there would be no South Park; and without The Flintstones-more or less The Honeymooners in cartoon loincloths-The Simpsons would cease to exist. If those don’t strike you as essential losses, then consider the remarkable series of “plagiarisms” that links Ovid’s “Pyramus and Thisbe” with Shakespeare’s Romeo and Juliet and Leonard Bernstein’s West Side Story, or Shakespeare’s description of Cleopatra, copied nearly verbatim from Plutarch’s life of Mark Antony and also later nicked by T. S. Eliot for The Waste Land. If these are examples of plagiarism, then we want more plagiarism.

From Open Source:

Nearly every word of [Lethem's] essay about cultural borrowing and reworking was stolen – er, appropriated – from some other source and then cobbled together with a big dose of Lethem magic to form a cohesive whole. Even the “I”s aren’t Jonathan Lethem; they’re Jonathan Rosen writing in The Talmud and the Internet about John Donne, or William Gibson in a Wired article about William Burroughs, or David Foster Wallace on a grad school seminar, or Brian Wilson in a Beach Boys song.

But this is more than a stunt. It’s a passionate salvo in the copyright wars, a crowd of voices coralled together to say, basically: without borrowing, stealing, cribbing, remixing, mashing-up, collaging and compiling – without influences great and small, in other words – there is no “creating.” No hip hop, sure, but also no blues, no Disney, no Shakespeare. No Lolita or “I have a dream.” We’d be reduced to staring at campfires and barking at one another.

So how to think about the joys, perils, and contradictions of influence in our intellectual property age? Lethem wonders himself:

“The dream of a perfect systematic remuneration is nonsense. I pay rent with the price my words bring when published in glossy magazines and at the same moment offer them for almost nothing to impoverished literary quarterlies, or speak them for free into the air in a radio interview. So what are they worth? What would they be worth if some future Dylan worked them into a song? Should I care to make such a thing impossible?”

Here is a podcast (mp3) of a discussion between novelistJonathan Lethem, author Siva Vaidhyanathan, and musicians Mark Hosler (of Negativland) and Mike Doughty (of Soul Coughing) about the politics of plagiarism and originality.

When does appropriation serve creativity? Quite often, in fact.

A commenter to yesterday’s post on Shepard Fairey’s Obama poster has suggested that I don’t believe in copyright because I believe that, even though Fairey created his image by initially tracing a copyrighted photo, the changes he made to the image and its re-contextualization within the campaign poster might well be sufficiently transformative to make his work non-infringing fair use.  In fact, I’d go so far as to say I genuinely believe Fairey’s image is a creative work in its own right even though it derives from another work.

In that regard, it’s worth noting that Henry McKervey and Declan Long, in “Makers and Takers: Art and the Appropriation of Ideas, write::

[I]t is the expression of an idea which is subject to legal protection. While perhaps this has meant that an artist such as Gillian Wearing can be faced with difficulties over the unattributed re-application of her work, the law also could be said to give artists a relative amount of freedom to take and re-use material in any number of subtly different ways without the spectre of plagiarism remaining ever-present. In a work such as Douglas Gordon’s 24 Hour Psycho, for instance, there is in one sense very little of the artist’s ‘own’ work (Hitchcock’s classic thriller being merely re-played at a radically slowed-down pace) yet Gordon’s intervention makes for a powerful, transformative artistic statement. The question of “knowing originality when you see it” is almost beside the point in cases such as this: artists’ strategies of appropriation prompt questions of originality to become thematically intriguing on, one level, while also being critically irrelevant and, on occasion, inappropriate, on another.

Believing that genuinely transformative appropriation is legitimate does not imply I do not believe in copyright.  It means, rather, that I believe that copyright should serve the only purpose it constitutionally is meant to serve: increased invention and creativity.

And did anyone notice that the John Williams composition played at the inauguration, “Air and Simple Gifts,” borrowed heavily from Aaron Copland’s Appalachian Spring, which itself appropriated a Shaker hymn?

Living the life of an artist or stealing? Coldplay faces the question once again

The Chicago Tribune reports: “A day after hauling in seven Grammy nominations, the members of Coldplay should’ve been celebrating. Instead they were served with a copyright infringement lawsuit Thursday that claims they ripped off guitarist Joe Satriani to write one of their biggest hits, ‘Viva La Vida.’”

And a comparison of the songs sure makes Satriani’s allegations credible:

There must be something about that song.  A band called Creaky Boards earlier this year accused Coldplay of stealing Viva La Vida from them:

As TechDirt subsequently reported, however, the leader of Creaky Boards later “not only retracted his accusation, but suggested that perhaps both bands were actually “inspired” by the “Fairy Theme” in the Legend of Zelda.”  TechDirt also made this, very important point:

. . . The thing is, part of the point we keep trying to make around here is that, for the most part, that’s true of just about everyone. It’s the overly aggressive use of copyright law that prevents that sort of “goodness” from showing up. Oh, and it’s also worth mentioning, that this little story has definitely increased the profile of The Creaky Boards — proving one of the points we recently made about plagiarism. Even if the plagiarist is “bigger” than you, the original creator can use that to their advantage aswell.

Plagiarism, even “unconsciously” done, has gotten musicians in trouble. In Three Boys Music v. Michael Bolton, a federal court of appeals upheld a jury award of $5.4 million against Michael Bolton and Sony (the record company associated with him) for “unconsciously” plagiarizing the Isley Brothers’ “Love is a Wonderful Thing.” As noted by the Columbia Law Library Music Plagiarism Project, the case is comparable to Bright Tunes Music v. Harrisongs Music, in which the court held that in his hit song “My Sweet Lord” George Harrison had “unconsciously misappropriated the musical essence of ‘He’s So Fine.’”

The decision against George Harrison has been heavily criticized.  It is important to note, though, that “plagiarism” involves issues entirely different than the ones (contentious themselves) involving sampling. Most importantly, it involves drawing those impossible lines between artistic influence, legitimate appropriation, and acts that are considered the equivalent of theft. Bob Dylan is without question one of the most important artists of our time, but, as John Pareles has written in “Plagiarism in Dylan, or a Cultural Collage?”

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.

Hip-hop, ever in the vanguard, ran into problems in the mid-1980’s when the technique of sampling – copying and adapting a riff, a beat and sometimes a hook or a whole chorus to build a new track – was challenged by copyright holders demanding payment even for snippets. Although sampling was just a technological extension of the age-old process of learning through imitation, producers who use samples now pay up instead of trying to set precedents for fair use.

Check out the following.  Led Zeppelin was covering Kansas Joe McCoy and Memphis Minnie, but Dylan claims the authorship of and the copyright in his song.  Of course, the copyright in the first song had expired, so Dylan’s song is not an legally infringes nothing:

I have made it a point on this blog to point out that historically many “Writers, like other artisans, considered their task to lie in the reworking of traditional materials according to principles and techniques preserved and handed down to them in rhetoric and poetics – the collective wisdom of their craft.”  In short, there is nothing unusual about Dylan’s compositional methods.  That’s not to say that Coldplay isn’t in legal trouble as a result of Satriani’s lawsuit.  It’s to say that we’re in a cultural moment in which people are ready to find theft and “plagiarism” where there may not be any.  Is Coldplay making money that really belongs to Satriani?  Would Satriani’s song have gotten a greater audience had Coldplay’s never been released?

ADDENDUM, from Wired:

Joe Satriani accused Coldplay of plagiarism for lifting elements of his song “If I Could Fly” for its hit song “Viva La Vida” earlier this year.

Now, videos depicting  similarities between the songs are disappearing from YouTube courtesy of Coldplay’s label, EMI, which claims the videos infringe on its copyright. We found one that’s still online, which you can view to the right, for the time being.

You can still hear the Coldplay song elsewhere on YouTube, including in user-generated videos, so it seems likely that EMI is removing the comparison videos due to embarrassment on the part of Coldplay and/or legal ramifications for the ongoing Satriani suit, as Music Industry Blog posits. One imagines that a judge or jury would merely need to see one of these videos to conclude that there’s a striking similarity between the songs… probably too striking.

It’s conceivable that the Chris Martin lifted the beat, chords and melody from Satriani subconsciously. It’s not uncommon for musicians to hear something and regurgitate it later without realizing it. Coldplay has been accused of stealing someone’s music before — for the same song, no less. And another YouTube video has cast doubt on these claims by showing that all three bands could owe a debt to some guy called Günther.

We’re not so interested in the spat between Satriani and Martin; plagiarism accusations abound in the music world. What’s interesting here is that EMI appears to be using copyright as a way to remove one version of a Coldplay song while allowing other versions to remain online. It’s a useful reminder of the ways in which copyright law can be used for purposes other than thwarting the infringement of copyright. In this case, it’s a somewhat useful tool for downplaying plagiarism accusations directed at one of the world’s top acts.

Many labels have deals with YouTube that allow their works to appear in user-generated videos, because doing so can net them more of YouTube’s ad revenue (artists and labels sometimes can get paid when someone synchs their music to user-created video on YouTube). Apparently, these deals involve the ability to pull certain objectionable usages for reasons other than copyright, although the message that appears on YouTube — “This video is no longer available due to a copyright claim by EMI Music” — appears a bit disingenuous. If copyright were the issue, a YouTube search for “coldplay viva la vida” wouldn’t return 32,700 results.

Lawyers need to be effective, not necessarily original

I wrote recently that legal writing is a quintessentially collaborative enterprise. That in part is why I think copyright is not an issue with respect to legal documents. A more important reason legal documents are not accorded copyright protection is that what matters with respect to a legal document is its effectiveness, not its originality. If a lawyer could copy an existing document that would do an as effective a job as it could for his client, he would be violating his professional code of ethics not to copy it. It thus boggles my mind when people write seriously that legal documents that duplicate others might constitute copyright violations.

It’s simple reality (and good business): lawyers and judges cut and paste from one another’s documents every day, and it would be absurd to impose a regime of copyright designed to promote original creativity if it undercut a legal regime designed to promote effective representation. Similarly, it is absurd to accuse lawyers of “plagiarism” in the documents they produce as lawyers. There have been cases which have spoken in terms of lawyer plagiarism, but they all can be better understood as fraud (charging clients for research that was nothing but the copying of pre-existing work) or malpractice (excessive copying that produces a document that bears little relationship to what the specific representation demands, as opposed to effective cutting and pasting of pre-existing work into newly written work) than as plagiarism.

Plagiarism is passing off someone else’s work as your own. But, again, in legal practice (as opposed to legal scholarship or law school work), the point of the work is its effectiveness, not its source or its originality.

In other words, all you students of mine, plagiarism in school is not allowed. It is an unethical act that can and will result in expulsion and disqualification from the practice of law. But let’s not confuse contexts: some contexts, specifically academic practices, produce in their audiences the expectation of originality; in others, specifically legal practice, originality can be effective, but effectiveness is the bottom line.