After years of copyright law reviewing art, an artist reviews copyright law

It is trite law that, while the courts will review whether or not an artistic work has the requisite originality to be subject to copyright, they will not review its artistic merit.  So we were amused to discover that an artist has found artistic merit in copyright law itself, creating works of art out of judgments and (court sanctioned?) apologies for plagiarism.

Angie Waller’s recent work, the Originality Compass (2010) consists of quotes from US copyright cases, configured together on a dial intended to convey “the subjectivity of the arguments that vary on a case by case basis”.  Another part of the work couples the dial with a wheel chart intended to show the judgments reached by courts.  She has modified the basic theme of that work to produce a schema entitled “Esoteric Concepts in Copyright Law”, which similarly presents quotes and findings from US copyright cases across a range of subject matter and arranges them in a circle.  The arrangement of quotes invites the viewer to compare the approaches to originality which have been taken in relation to different types of works.  Possibly intended to bewilder the viewer at the complexity and subtle distinctions which exist in this area of the law, the schema draws comparisons not only between courts’ approaches to different types of works, but also between the approaches different courts have taken to similar subject matter. 

The themes of her work on originality thus range from the informative (explaining that no copyright exists in scenes or settings for stories, for example a “hell/dungeon” setting, as such scenes are at too high a level of abstraction) to the subtly critical (contrasting a decision in which animal mannequins were found to be sufficiently original to one in which human mannequins were not, but failing to reconcile the two) to the amusing thoughts of courts on pop culture (dicta stating that the phrase “back that *ss up” was not sufficiently original to confer copyright as “any expression of the [Jubilee] dance… necessarily includes use of the phrase “back that *ss up”).

In contrast, her work I’m Sorry (2010) is intended to explore “originality in the context of appropriation and plagiarism”, in order to consider the ethical dimension of legal protection for original works.  The book contains a number of excerpts of public apologies in hand set type.  The apologies are intended to explore more deeply the idea of “exposure to other’s ideas and the slippery slope between influence, appropriation, and outright ‘theft'”.  In order to illustrate this point, she includes the heartfelt apology of somebody who unwittingly infringed copyright, believing that they had merely been influenced by the copyright protected work, rather than misappropriating its content.  Her work implicitly raises questions about the lack of a mens rea requirement for copyright infringement and the ethical implications that exist, particularly given the potentially nebulous nature of “originality” as a concept.

Ms Waller’s artistic interpretations of copyright cases, and their aftermath, provide a refreshing perspective on the legal approach to originality and the ethical repercussions which ensue.  The Originality Compass has been on exhibit in New York and Mexico.  Ms Waller’s schema was published in the February 2011 issue of The Believer magazine.

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