Art, copyright and transformation

Artistic works are often inspired by, and may draw upon, other artistic works or texts.  But has the interpretation of the scope of copyright granted to artistic works expanded too far, to the extent that artists are discouraged from drawing upon any other work for fear of litigation?

This is the subject of Andy Baio’s recent blogpost, in which he critiques both the threatening use of copyright law to discourage use of other artistic works and the vague and often misunderstood application of the US “fair use” exception.  Baio was sued for using a pixelated version of a Miles Davis album cover and the plaintiff’s lawyers refused to accept that the fair use exception would apply in his case. 

The fair use exception is available in the US and provides a defence to copyright infringement if the use of the work was for a limited and “transformative” purpose such as critique or parody.  Australia does not have a “fair use” exception per se, but does provide that use of copyright work for parody, satire or review and criticism does not constitute copyright infringement. 

While Baio firmly believed that his use of the album cover was transformative and therefore fell within the exception, the cost and stress of the ongoing litigation caused Baio to agree to an out of court settlement.  

The case illustrates the tension between the importance of responsibly interpreting the scope of copyright protection, having regard to its underlying principles, to ensure that it is not misused to discourage productive activity, and the difficulty in practically working out when or how one should draw this line.

The point is not a minor one, given the constantly evolving nature of art and artists’ natural inclination to be inspired by other work.  For example, in Nathan Sawaya’s “Art of the Brick” collection (artwork produced using lego, a selection of which is currently on exhibit at Federation Square in Melbourne), Sawaya includes a large lego monopoly box and a lego portrayal of a Star Wars’ Stormtrooper.  Most would consider Sawaya’s interpretation of these icons to be fresh, creative, and even inspiring.  Whilst Sayawa may well have obtained permission to create these works, it provides an interesting reflection on the parameters of “inspiration”, “adaptation”, “originality” and “authorship”.  Information on the exhibit is available here.

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