Visit soon for part 2 of this piece
Art forms change. Entire systems, styles and genres have come and gone, spotting the annals of history with new and old methods of creating art. Traditionally, law has had a certain trouble keeping up with the avant-garde. This is attributable to the phenomena of legal delay and legal uncertainty in dealing with new art forms and types of creations. An excellent example of this is the manner in which American (and to a lesser extent Canadian) copyright law treat Appropriation Art.
Appropriation Art, in its broadest sense can be defined as “the use of borrowed elements in the creation of a new work”.[i] Modern examples of Appropriation Art can be found in various artistic domains. Some say that the 1970’s Appropriation Art movement (most famously headed by artists like Andy Warhol) marked the beginning of this style. However, Professor Jessica Silbey of Suffolk University Law School suggests that some art experts point as far back as Leonardo Da Vinci for examples of Appropriation Art (Da Vinci used scientific drawings of human anatomy in his artistic expression).[ii]
One of the most common places to find Appropriation Art today is the internet (more specifically YouTube). The advent of video and musical mash-ups and remixes has taken us well beyond Warhol’s “Campbell’s Tomato Soup”. For example, musical artist GirlTalk uses snippets of dozens of existing music tracks to create a new expressive work that is all his own. Lovers of Japanese Anime often engage in an art form known as AMV (Anime Music Video) where they meticulously splice clips from their favorite shows together with music to create a form of homage or tribute.
To some people, the appropriation of other artists’ works in simple theft. After all, if a person takes my property and uses it himself without permission, it is rather intuitive to conclude that he is guilty of an offense. Unfortunately this view does not consider the original context in which intellectual property rights were created. Thomas Jefferson famously wrote:
“If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of every one, and the receiver cannot dispossess himself of it.”[iii]
This passage tells us that, far from natural, intellectual property rights are a creation of the government. They are a legal fiction fashioned for the purpose of stimulating innovation and growth in a culture where people often require incentives and guarantees in order to create. This may sound bizarre to some; in reality, most people will opt not to create if they know that, once divulged, their creations can be mimicked and copied with no possible recourse. It is for that very reason that Jefferson saw the value in intellectual property rights. However, he goes on to say that:
“He who receives an idea from me, receives instruction him-self without lessening mine; as he who lights his taper at mine, receives light with-out darkening me.”[iv]
Jefferson obviously recognizes that “intellectual property” and “real property” are different in certain key respects. Applying this concept to Appropriation Art, using your source material in the creation of my new work does not necessarily disadvantage you or your original material. In fact, sometimes such an appropriation by a well known or famous person may have substantially positive effects on the original work or creator. On the contrary, if I take the siding off of your house to construct a new house for myself, I am clearly stealing and in so doing disadvantaging you by appropriating something you own away from you and to myself.
Jefferson viewed monopoly in general as evil. He saw the way British monopolies had the effect of centralizing wealth in the hands of a powerful few to the detriment of the people and the culture as a whole. Conflictingly, Jefferson recognized that artists must be protected if they are to be motivated to create new art. Copyright, therefore, is a “necessary evil” instrumental in the proportion of what is good- Creation and innovation.
The Copy “right” and “derivative works”
Copyright law in Canada[v] and the U.S[vi] includes the exclusive right to reproduce, distribute, license and perform a work. It also confers the right to create or license “derivative works”. The U.S Copyright law defines derivative work as:
“ [A] work based upon one or more pre-existing works, such as a translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted. A work consisting of editorial revisions, annotations, elaborations, or other modifications which, as a whole, represent an original work of authorship, is a “derivative work”.”[vii]
No definition for the term derivative work is given in the Canadian copyright act. Nevertheless, the American definition seems to fit quite nicely into the Canadian context as well. One Canadian case[viii] even interpreted translation to include the translation of a computer program from one coding language to another.
The rights an author has in derivatives works was originally conceived so that no other person could adapt an artist’s work into another medium, format or language and call it their own. This, by all accounts, seems rather fair. After all, if I write a book, why should someone be able to go make a film out of it without licensing the right to do so (from me)? That being said, the concept of the right to derivative works seemingly neglects to account for the entire style that is Appropriation Art. This style (or perhaps more accurately method considering it spans across several art forms and periods) is not expressly assessed in either American or Canadian Copyright legislation.
Judges have a tendency to consider anything that makes use of previously existing art in any way a derivative work. In Canada, constructing a building form a drawing can be considered copyright infringement.[ix] Whether or not a human can perceive the use of the original in the new work is inconsequential.[x] The Supreme Court of Canada ruled that translating the coding of computer software from one programming language to another constitutes a derivative work in the sense of the Copyright Act. This is also true in American jurisprudence[xi] It seems that judges are highly preoccupied with the author’s right without lending too much analysis of future implications the ruling may have on our cultural growth. In the words of Professor David Vaver:
“In deciding issues of Infringement, especially in an era of high experimentation with digital technology, courts must consider not only the parties’ immediate interest but also how any decision may affect future artistic behavior”[xii]
Vaver is concerned with judges losing cite of Jefferson’s warning. Copyright is an economic right to be sure. However, to neglect the effects of a decision on future artistic creation is to ignore the very ethos that lies behind any intellectual property statute- The promotion of progress.
Though Canadian jurisprudence on Appropriation Art and derivative works is thin at best, American tribunals have had the opportunity to weigh in on the matter. In Rogers v. Koons[xiii], the court rejected a famous artists fair use defense (based on parody) when he used a photo to create a sculpture. The sculpture had nothing to do with the original photo itself. There was nothing derivative in the work at all except for the use of the raw material. The court rejected the parody defense for exactly that reason. Had the sculpture been a critique or parody of the original photo (making it a derivative work) it would have been protected under the Fair Use doctrine. However, because the artist transformed the old work into something new and creative that had absolutely no artistic connection to the old work, the artist was found liable for copyright infringement. A similar case was tried in 2008 in the Southern district of New York.
[ii] See podcast on the Patrick Cariou v. Richard Prince case here: http://legaltalknetwork.com/podcasts/suffolk-law/2011/03/patrick-cariou-v-richard-prince/ where professor Silbey mentions the origins of appropriation art.
[iii] Letter from Thomas Jefferson to Isaac McPherson (August 13, 1813), in
The Writings of Thomas Jefferson
, ed. Albert Ellery Bergh (Washington, D.C.: The Thomas Jefferson Memorial Association of the United States, 1907), vol. XIII
[v] R.S.C., 1985, c. C-42 §3
[vi] 17 USC §106
[vii] 17 USC §101
[viii] Prism Hospital Software Inc. v. Hospital Medical Records Institute (1994), 57 C.P.R. (3d) 129 at 278 (B.C.S.C.)
[ix] King Feature Syndicate Inc. v. O. & M. Kleeman Ltd.,  A.C 417 (H.L)
[x] Apple ComputersInc. V. Mackintosh Computers Ltd.,  2 S.C.R. 209
[xi] Phillips v. Kidsoft L.L.C, 52 U.S.P.Q.2d 1102 (D.C. Md. 1999)
[xii] VAVER D, Copyright Law, Irwin Law, 2000, p. 125
[xiii] 960 F.2d 301