â€œOriginalityâ€ and Copyright Law: Trickier Than Youâ€™d ThinkApril 20, 2011
Last week when I reported back from Google Copyright School, one thing about the video that bothered me was its implicit assertion that “original” works are better and more interesting than derivative works, like remixes or mash-ups. This idea bothers me for two reasons: to me, it’s actually very difficult to sift through our culture and determine what’s really “original” and what isn’t, and even if we could do it I’m not so sure that the arguably not-original works provide no value to society.
The originality problem in copyright law is particularly tricky, and it’s one that U.S. courts have struggled with for a long time. For better or for worse, it’s somewhat unavoidable, though: the Copyright Act only grants protection to “original works of authorship,” but “original” is left undefined. So we (and importantly, the courts) are left to sort it out ourselves–does this mean that the work has to be “from scratch,” or that there must be some minimum of creativity in the work to qualify for copyright protection (or both)? Which analysis you used could lead you to very different outcomes in any particular case. Sometimes courts determine whether works are original by looking to what inspired them: if the work copied nature, it is original, but if the work copied another person’s work, it is not (Bleistein v. Donaldson Lithographing Company is a good example of this kind of analysis). By looking at it this way, however, we lose sight of what exactly the artist’s own contribution is. It’s possible for a painting of a tree to lack creativity and contribute little artistically, and it’s possible for a painting of a sculpture to be very creative. Knowing what kind of object inspired an artist doesn’t tell us anything about the artistic contribution of the resulting work. Courts may also analyze whether a work is sufficiently creative to merit protection (I’d recommend Feist v. Rural Telephone for this take), but sometimes that means walking a fine line between what’s just uninteresting art and what’s not art at all. Often courts are reluctant to go down this road, and for good reason, because then they would need to evaluate the artistic merit of every piece before deciding whether it’s protected by copyright. So when we try to take stock of what it is that qualifies a work as “original” under copyright law, the answer turns out to be much more complicated than we thought.
Closely tied to this is the idea of “authorship,” which is also not defined in the statute, and comes up most often in cases where the contested work was created by multiple individuals. The Aalmuhammed v. Lee and Gaiman v. MacFarlane decisions show a couple different approaches that courts take to determine who is a co-author. In Aalmuhammed, the Ninth Circuit noted that providing a substantial creative contribution is not enough, but rather the work must owe its origin to the person for that person to qualify as an “author.” The court reasoned that the Copyright Clause of the Constitution operates by incentivizing authors, but creative progress would be stifled if authors could not get help from others without sacrificing sole authorship over the work (for example, a biopic director obtaining creative input from a cultural expert or historian). I understand that the court here was trying to reach what it considered a reasonable result, but I’m not so sure that our obsession with “the author” and “original” works is really based on an accurate perception of how art is created. As others have explained before, all creative work builds on what came before it (Everything is a Remix does a really great job demonstrating this), and we don’t want past creators to be able to stop artistic progress via control over their past works. When we start making policy decisions based on legal fictions, it’s not surprising that the system will churn out a few perverse incentives.
This problem is especially pronounced for many postmodern works, which have a special place in my heart from back when I worked in the music industry. As many in the music business do, I worked in a lot of different genres, from Gregorian chant to American folk and from Romantic symphonies to contemporary sound art. One of my personal favorites, though, is postmodernism and its current-day progeny. I’ve played, recorded, taught, managed, researched, lived and breathed this stuff, and as a (hopefully) soon-to-be lawyer I’m now confounded by the idea that our interpretation of the law designed to promote creative progress is based on a fundamental misunderstanding on how creative progress works. When we apply copyright law to artistic genres that focused on natural objects we could more or less try to ignore this problem, but for decades now society has been enjoying the fruits of legitimate genres whose entire artistic import is to reject the identity of the author and turn our gaze to social objects.
Postmodernism was a response to the (you guessed it) modernist movement; a look inward to our own culture (as opposed to nature). To do this, we take and re-order the objects around us–reflecting and commenting on our world just as artists always have, but this time by re-appropriating social objects instead of “natural” ones. This isn’t just about reproducing an experience (which might be inherently impossible), but about collecting things, turning them around, taking them out of their environments and fixing them on blank spaces to examine the object itself. Problematically from a legal standpoint, postmodern works often intentionally blur the line between transformation and reproduction, between parody and pastiche. The entire point behind a postmodern work may be to reject the assumption that there is something unique in the object it imitates, thus redefining authors/creators as collectors/machines. If you’re interested, Xiyin Tang has an excellent in-depth examination of postmodernism and copyright law in her article That Old Thing, Copyright….
You may or may not like postmodern works (I’ve heard it before, you won’t hurt my feelings), but I am positive that, in their very rejection of progress, they have contributed to our society’s creative progress. Postmodern works embody ideas that are unexpected, difficult, interesting, entertaining, and challenging–exactly the kind of progress that we want to encourage with copyright law. To reject postmodern works as unoriginal or mere reproduction is to entirely miss their purpose. Unfortunately, when we only ascribe value to works that contain an “originality” that we can never seem to pin down, we’re defining an entire artistic movement out of existence. It’s true that, practically speaking, every new genre finds itself fighting to be accepted as legitimate in the art world, but, in the US, what they don’t have to do is convince the government that they should be allowed to exist at all. Until now.
There are a lot of different planes on which to debate what artistic contribution a given work makes to society, but what I utterly reject is the idea that the fact that a work builds upon pre-existing social objects (including other works) makes it any less valuable or original as a work of art. Furthermore, those that dismiss remixes or mash-ups as mere cleverness while lauding truly “original” works might have some trouble explaining what exactly made that work original once we strip away all of the elements that came from nature, culture, or other social objects. Arbitrarily denying “art” status to a work because of its underlying philosophy can’t possibly be right, and we do a disservice to society’s artistic progress as a whole when we do so.