“Immature poets imitate; mature poets steal; bad poets deface what they take, and good poets make it into something better, or at least something different.” – T.S. Eliot, The Sacred Wood (1920)
Professional marketers and communicators often take their inspiration from earlier works in fine art or popular culture, and build new commercial messages that evoke or take off from the original material. We see it everywhere. But is it ethical? Perhaps more importantly, is it legal? What are the consequences for you if you’re not sufficiently careful, or knowledgeable?
“In recent years a number of advertising campaigns have seemed to draw their inspiration directly from high-profile works of contemporary art,” wrote Mia Fineman in the New York Times. “And the artists who believe their images and ideas have been appropriated are not happy about it.”
So ad campaigns see it as inspiration. Artists see it as appropriation. How to sort through this?
Authorship
Earlier this year a French court ruled against an artist named Orlan, who sued Lady Gaga for intellectual property infringement in the music video for 2011’s Born This Way. Orlan specifically called out an image in the video featuring bodyless heads that Orlan felt was stolen from her own 1996 assemblage Woman With Head. Here are the images in question:
Orlan was leveraging something called “free-riding” in French copyright law, which allows an artist to sue another if an infringement creates confusion regarding authorship. It didn’t work.
“The court ruled that there was no confusion because the two artists don’t share an audience,” commented Naomi Rea in ArtNet. “Lady Gaga did not benefit from an association with the French artist… and the works were of a different, not overlapping, nature.”
I was astonished that the suit had gone as far as it had, since rather than a truly original work that would influence major international pop stars, Orlan’s piece instead looked to anyone with a knowledge of film history like a mimicry of things such as Return to Oz and The Brain that Wouldn’t Die:
What is plagiarism?
Plagiarism is a tricky thing. Defining it is the first hurdle.
US copyright law protects works that are original, such as books, plays, paintings, musical compositions, and so on. But these have to be tangible: the copyrighted work will be an expression of an idea, but not, significantly, the idea itself. You can copyright the actual sculpture of a woman’s head on a table, as well as the preparatory drawings of the sculpture, but not the “idea” for a sculpture of a woman’s head on a table, especially when that idea was used decades earlier in a cheesy horror movie.
There is also the matter of “fair use,” which permits limited usage of limited amounts of copyrighted materials for, say, educational or parody purposes. This also allows works that are “homages” to other works, or essentially “quoting” another work (such as sampling in music).
The more sources you quote from, it seems, the more you can avoid trouble. “To steal ideas from one person is plagiarism,” points out the comic Steven Wright, “to steal from many is research.” It could be argued that Quentin Tarantino has made a career out of recycling entire truckloads of things he likes from films of the past.
One of the most famous examples of this approach is the pastiche style of George Lucas in his Star Wars franchise. The pod race in Phantom Menace was lifted from the chariot race in Ben Hur, the death of Yoda was copied from Capra’s Lost Horizon, Darth Vader’s appearance is an update on the character The Lightning in the 1938 serial Fighting Devil Dogs, and a palette of visual style was taken from John Ford. R2D2, C3PO, Han Solo, Princess Leia, and a chunk of plot are boosted from Akira Kurosawa’s The Hidden Fortress. Frank Herbert’s Dune was a huge source: Luke Skywalker was essentially a Paul Atreides retread; the Jedi are the Bene Gesserit with a gender change and fresh coat of paint; there are the sand crawlers and spice mines; and Jabba the Hutt’s appearance seems based on Herbert’s God Emperor (with his personality based on Sidney Greenstreet’s Signor Ferrari in Casablanca).
Not all copying is infringement
So where is the line drawn between plagiarism and an homage?
“The purpose of the Copyright Act is to promote the advancement and diffusion of knowledge by incentivizing the creation and public dissemination of original works so others can build on top of those works and that knowledge,” writes Daliah Saper in ‘The Copyright Question: The difference between inspiration and infringement.’ “Therefore, not all copying is copyright infringement. Businesses can take ‘ideas’ from protected works. The million-dollar question is at what point do unprotectable ideas become protectable expression?”
Consider these two images:
The painter of the image on the right is Luke Hillestad, who creates updated and revised copies of older works. “I am a mimicist,” he explains in the article “Painting Under the Influence: Aristotle’s ‘Memesis’ and my lack of originality” that appeared in Artists on Artin 2014. “If I see something I like, I want to make my own version.”
There’s no question Hillestad’s painting is based on the Rembrandt. There is a question, however, whether he elevates his copy to something sufficiently unique. You may think this is not important, since Rembrandt painted his version hundreds of years ago. But what if he had painted it just a decade ago?
The heirs of Marvin Gaye are pushing the envelope on this topic. In 2015 a jury awarded Gaye’s children over US$7 million from Pharrell Williams and Robin Thicke because their hit Blurred Lines supposedly didn’t just capture the sound and feeling of Gaye’s 1970s music but instead outright copied his hit Got to Give It Up.
I was among the many people who found this verdict dubious at best, and an alarming precedent, since nothing concrete in Gaye’s expression – the words, the melody – were stolen, but just the style of that era of music. And intentionally so, in that Pharrell was consciously going after a certain kind of groove associated with Gaye and others.
“In pop songwriting there’s an undeniable lineage to trace because musicians work in well-defined genres, and there are only so many chords and notes. So each generation of artist reinterprets and references those who came before,” noted a Chicago Tribune editorial after the verdict.
The Tribune referred to musicologist Michael Harrington of SAE Institute Nashville, who was one of many experts who didn’t think Blurred Lines was plagiarized. Harrington, said the Tribune, felt the decision was a precedent: “Copyright infringement based on overlapping groove.”
The win over Pharrell seems to have emboldened Gaye’s heirs, as they have recently directed their eager lawyers at Ed Sheeran, filing a US$100 million lawsuit alleging Sheeran created Thinking Out Loud by blatantly copying Gaye’s 1973 hit Let’s Get It On. “Sheeran responded that the chord progressions and drum patterns of the two songs were ‘extremely commonplace’ and that similar elements were in the public domain and unprotectable,” wrote John Lynch in Business Insider.
It seems to me this has moved from an artist protecting tangible works from infringement, to heirs exploiting the similarities of pop music tropes in order to enrich themselves. But that’s just my opinion.
Who calls first?
A fascinating and amusing way to experience just how prevalent similarities between works can be is to follow the Instagram account Whos_who. The owner of this account posts multiple art works – usually two but sometimes more – that look so similar that in some cases they seem like the same person made them, and simply tags the artists without identifying which is which, or which came first.
It is sometimes a little unsettling to consider that either two artists at best magically were inspired in nearly identical ways and then created nearly identical works, or, at worst, that one of the artists shown intentionally and cynically copied the other:
If one of the artists sued the other, how would it be sorted out?
“It is commonly believed that a specific number of changes in a design — such as five, six or seven changes — are automatically sufficient to make the later design original,” writes Jess Zafarris in his article ‘Graphic Design Copyright Laws: Inspiration vs Infringement,’ in How Magazine. “This is not true. Rather, a judge will consider whether the changes were sufficient so that the new design would be considered transformative of the original design rather than derivative of it.”
What to do when you see something that you want to quote from in a project you are doing? Consider your motives: are you inspired, or are you being lazy? Consider the likely result: will you use it as a launching pad and transform it, or are you recreating something out of the original context?
And most importantly consider authenticity: are you making something truly an extension of you, or are you just imitating others? As W.H. Auden said, “Some writers confuse authenticity, which they ought always to aim at, with originality, which they should never bother about.”
I’ll leave you with a final question. Below is an advertising image from a 2011 KitchenAid campaign, where the style of Henri Matisse is used to sell mixers. Is this unauthorized mash-up truly an extension of both Matisse and KitchenAid, or is it just a lazy imitation with an injection of fine art prestige?
