How do we promote creativity?

One common theme that runs through my views regarding intellectual property is that there is way too much treatment of intellectual property as the equivalent of real property (that is, land). I can fence off my land and keep everyone off of it. Therefore, too many feel, I can fence off my intellectual property and prevent anyone from doing anything with it that I don’t give them permission to do. One commenter on my post last week regarding Shepard Fairey’s Obama campaign poster manifested this confusion about the differences between real property and intellectual property. I think the authors who didn’t want their books to be accessible for word searches via the Google Library Project did as well.

My greatest knowledge about intellectual property concerns copyright. The first thing to know is that copyright is a relatively recent legal creation and that tall U.S. copyright law exists by virtue of and within the limits of 27 words in Article 1. Section 8 of the U.S. Constitution:

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.

In other words, copyright law exists to promote invention and creativity, and to the extent it discourages invention and creativity it is unconstitutional. Works that are genuinely creative in their own right but appropriate copyrighted works (Girl Talk and Shepard Fairey, among many others) therefore have a very strong claim to legitimacy as long as they do not exploit the market created by the original work. Indeed, that’s exactly what the fair use doctrine is intended to allow and is beginning to reflect.

My views are shaped to a considerable degree by my belief that all creativity is grounded in previous work, and that the more leeway the law gives to appropriation the more creativity we will have. Of course there are limits. You cannot entirely rob the artist of the financial profits of his work. But using that first artist’s work in an altered way that creates something people want for reasons entirely different than the reasons they wanted the original work does not rob the first artist of the fruits of his labor. Rather, it allows someone else to sprout new fruit.

Apparently, IBM shares this attitude with respect to inventions it could patent. As Securing Innovation reports:

IBM used the occasion of the recent announcement of its 2008 patent record to introduce plans to help stimulate innovation and economic growth. The company plans to increase by 50% — to more than 3,000 — the number of technical inventions it publishes annually instead of seeking patent protection.

Why? According to IBM’s press release:

Publication of technological information is one means to “promote the Progress of Science and useful Arts” the phrase in the U.S. Constitution giving the Congress the power to enact patent laws. Publication protects inventors from allegations of infringement by placing the intellectual property into the body of prior art. Publications also improve patent quality, since they can be cited by patent offices in limiting the scope of patent applications. Publication also helps spur follow-on innovation that ensures dynamic business growth.

While IBM will continue to seek patents and will protect its intellectual property, its planned increase in publishing inventions will focus on those technology areas that will increase the build out of a new, smarter infrastructure. The evolution of IBM’s policy builds on prior efforts to stimulate innovation by pledging not to assert certain patent rights in the area of open source software, health care, education, the environment, and software interoperability.

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?

Copying or transforming?

Brian Sherwin of myartspace>blog is very upset with Shepard Fairey for creating the Obama poster (pictured on the left) because Fairey produced his image by, first, stenciling the original photograph pictured on the right. Fairey never attributed the image to the photographer and, of course, never compensated him. I don’t share Sherwin’s umbrage. The photo on the right is a generic image that is indistinguishable from photos seen constantly the world over these last several months. The image on the left became a resonant symbol. The photo could not begin to be considered a substitute for the poster. I think the poster is in fact “transformative” of the photo.

I dont know how to tell you all just how crazy this life feels

From MSNBC:

John McCain may have lost the presidential election to Barack Obama, but his campaign seems absolutely determined not to lose to Jackson Browne. The singer/songwriter sued McCain in August after the Republican candidate for the highest office in the land used his song, “Running on Empty,” in a campaign commercial that targeted Obama’s energy plan. . . .

McCain, of course, is arguing that his use of the song was fair use, not copyright infringement (hyperlinks added):

The campaign’s fair use reading is based on the application of the standard four-factor test that includes the purpose and character of the use of the song (McCain argues it was non-commercial and transformative); the nature of the work (McCain derides the song as old, old, old, with a title that’s an acknowledged cliche); the amount and substantiality of the use of the song (McCain only used the title phrase, and cites a recent judgment against Yoko Ono, who had sought to prevent the unauthorized use of John Lennon’s “Imagine” in a film); and the effect of the use of the song (McCain says that rather than damage the song’s commercial potential, his use “will likely increase the popularity of this thirty year-old song”).

In some ways, the case is reminiscent of Master Card v. Nader 2000 Campaign Committee, in which the court dismissed Mastercard’s lawsuit against Ralph Nader’s 2000 Presidential Campaign Committee. Mastercard’s lawsuit alleged, among other things, that a Nader campaign add that borrowed heavily from Mastercard’s “priceless moments” television ads infringed on Mastercard’s copyright in those ads. The court concluded:

The Nader Ad does add something new and qualifies as a “transformative” work. Whether it “comments” on the original is the issue in question. MasterCard’s message depicted in its Priceless Advertisements is very plain and straightforward. In a series of advertisements, MasterCard presents various intangible moments that are highly valuable, yet unable to be “purchased” or are “priceless.” Hence, “there are some things that money can’t buy.”

This idea is followed by the message, that the viewer-consumer can purchase everything else with their MasterCard credit card–”for everything else, there’s MasterCard.” Ralph Nader’s Political Ad attempts to show various ways different Presidential candidates can be bought in the “big-money arena of Presidential politics” and contrasts the “priceless” truth represented by Ralph Nader as the remedy for the bought and paid for positions of others. Through this depiction, Ralph Nader argues that he not only sends across his own message, but that he wittingly comments on the craft of the original, “which cloaks its materialistic message in warm, sugar-coated imagery that purports to elevate intangible values over the monetary values it in fact hawks.” This commentary “may reasonably be perceived.” The message need not be popular nor agreed with. It may be subtle rather than obvious. It need only be reasonably perceived. Ralph Nader’s Political Ad is sufficiently a parody for the purposes of a fair use analysis, and consequently, is transformative.

William Patry, Google’s Senior Copyright Counsel, opines on typically futile efforts to use copyright to quell political speech here. There is a long history of this type of thing, as I’ve mentioned here and as you can see in the videos below, none of which was successfully blocked by the owners of the copyrighted works being used:

How can something new come entirely from old things?

I’ve written before (here and elsewhere) about Girl Talk, the name under which Greg Gillis records and performs his aural collages, made up of hundreds of samples of pop recordings re-worked by him through contemporary technology into what can only be considered new songs. Gillis continues to get attention as he makes his way on tour across the country, this week in Tuscon and Dallas. As I have previously pointed out, on its face, Gillis’s work seems to run afoul of legal authority which holds that the use for commercial benefit of any recorded sample, no matter how brief, constitues copyright infringement. As the Tuscon Weekly points out, Gillis is a little tired of hearing about this:

Gillis says he’s tired of the media characterizing his music as a “lawsuit waiting to happen,” yet he admits: “There’s definitely a component there of seeming like an outlaw, and I think that appeals to some people.” Girl Talk’s appeal, perhaps, speaks to the preoccupations of a new generation raised online–and he may be just the sort of celebrity it fosters.

And indeed, Gillis samples such litigation-happy groups as Metallica. Nevertheless, I suspect Metallica will not sue Gillis. Why? Because lawyers no you don’t sue people who have the strongest case on the question of law you are concerned about. In other words, Gillis poses the greatest risk to the legitimacy of the cases ruling that any sample, no matter how brief, is an infringement. Metallica, thus, would rather sue someone who sampled their music in some ham-fisted way that plainly did exploit the value Metallica has created. Metallica would win the lawsuit against such a defendant.

Gillis, however, really does seem to have transformed his raw materials into something entirely new. (You can hear for yourself by downloading his album here, for any price (even zero — itself an interesting move in legal terms).)

In fact, whether a work is “transformative” is, exactly, what is determinative in deciding whether its appropriation of copyrighted work is fair use or infringement. No one is going to listen to a Girl Talk “song” that samples a Metallica song as a substitute for the Metallica song. The Girl Talk song is something entirely new, even if it is made up of things entirely old. This focus on the “transformative nature” of an appropriating work comes from one of those rare law review articles that actually have an impact on the real world, although in this case it was by a judge, Pierre Leval.