Guest Post: ‘Plagiarism, Copyright & The Human Factor’

This guest post was written by Julian Hewitt [pictured right], a music lawyer for Melbourne-based Media Arts Lawyers.

Jules works with a variety of Australian artists and events including Architecture in Helsinki, Lisa Mitchell, Miami Horror, Big Day Out, Boy & Bear, Falls Festival, and Operator Please. He uses a breathtaking handcrafted font called ‘Slim Aarons’ in all of his legal documentation.

Plagiarism, Copyright & The Human Factor

“Only God creates. The rest of us just copy.” - Michelangelo

“Always steal the best ideas. They are so much better than the bad ideas.“ - Recent advice from photographer Justin Smith

Art imitates life, but not nearly so much as it imitates art. Post-modernism made the act of referencing an existing work a conscious statement in itself, but music, art and literature have always been indebted to the influence of prior works. We don’t live in a vacuum, and artists do not create in one.

Music purists expect ‘authenticity’ from musicians, but there is no such thing. The Beatles pinched guitar riffs from Chuck Berry, Chuck Berry pinched guitar riffs from T-Bone Walker, and T-Bone was a protégé and stylistic disciple of Blind Lemon Jefferson. There are only a few small aesthetic steps to get from 1970’s Krautrockers Neu! to James Murphy’s LCD Soundsystem, and whilst Beethoven’s compositional style is considered “definitive”, it was “anticipated” by both Haydn and Mozart. In short, every song has a geneology that starts well before its first note.

The same is true of film and TV. One recent count suggests approximately 208 million films have been made since the birth of cinema, and yet screenwriting courses commonly suggest there are just eleven distinct film genres. NY Times film critic Janet Maslin said in 1983: “Hollywood may have never been more dangerously and unimaginatively beholden to its own past than it is right now” (and surely ate her words in 1984 upon the cinematic release of “Cannonball Run II”), and Quentin Tarantino learnt to make films by watching movies while on the job at the Video Archives rental store.

Television is no different. “There are only a handful of basic ideas,” says Fred Silverman, former programming head at ABC, CBS and NBC, “past those you are really into derivation.” Steven Bochco, who created a raft of successful shows including “Hill Street Blues”, “LA Law”, and “NYPD Blue” called making television “serving old wine in a new bottle.”

Are the visual arts more ‘pure’? Sam Leach’s Proposal for Landscaped Cosmos [pictured right] won the Wynne Prize for the best landscape painting of Australian scenery in 2010.

It was subsequently revealed that the painting was a reworking of 1600s-era Dutch artist Adam Pynacker’s Boatmen moored on the shore of an Italian lake [pictured left].

Outcry that Leach’s work was ‘unoriginal’ came largely from non-art media sources, upset that an Australian scenery prize was a copy of a Dutch work. Art-world criticism focussed instead on Leach’s failure to attribute the source material in the naming of his work, which is usual artistic practise, but seemed more casual on the issue of authenticity and originality. As Wynne judge Lindy Lee said: “Of course I can see there are structural similarities (but) there’s a long tradition of artists working from images of other artists“.

Does the realisation that Leach’s painting directly appropriates Pynacker’s impact the effect of the new painting? The knowledge contextualises Leach’s painting, and provides additional layers of meaning – as the newer work plays off a painting with its own distinct history. What would happen if Leach had copied Pynacker’s completely without making any changes?

In Languages of Art, Nelson Goodman questioned the relevance of authorship:

“Why there is any aesthetic difference… [to the] original work challenges a basic premise on which the very functions of collector, museum, and art historian depend?”

But there is no question that being the “originator” means something valuable to us. As Louis Armstong noted, “a lotta cats copy the Mona Lisa, but people still line up to see the original”. The value is not just in the painting, but in the fact that it is an expression of something unique, ‘new’, and not only a facsimile of a prior work.

Cultural bower-birding doesn’t always sit comfortably with broader society. If Pynacker’s painting was still capable of being protected by copyright, Leach would have likely infringed on that copyright. The function of copyright is to protect the artistic expression of an idea, rather than an idea itself. The separation of the expression of the idea from the idea may seem semantic, but it is significant. Copyright law does not care that a work is inspired by another copyright protected work, provided it does not actually reproduce that work.

How can this happen? Woody Allen [pictured right] acknowledges his stylistic debt to Ingmar Bergmann; certainly, many of Allen’s films contain direct visual references. In Bergmann’s The Seventh Seal, the hero plays chess with Death, which was re-created by Allen in Death Knocks with the chess substituted for gin rummy. But Allen’s characters do not use Bergmann’s scripted dialogue, and his films do not feature footage shot by Bergmann, nor utilise sound from Bergmann’s film.

In a musical context, taking an interest in the style or mood of an artist – or what they might call their distinctive “sound” - is perfectly acceptable, provided you don’t use extracts of their recordings or substantially reproduce their melodies or lyrics. So Wolfmother can ‘do’ Black Sabbath [see below video] without fear of prosecution - at least not from lawyers, although there are a few Sabbath fans who want to turn them into “children of the grave”

And Midlake can ‘do’ Fleetwood Mac’s “Rhiannon” as “Roscoe” [see below video]. But like Wolfmother, they’re copping a ‘vibe’, as opposed to a melody or a lyric.

George Harrison unconsciously but directly referencing the melody of The Chiffons “He’s So Fine” in “My Sweet Lord” is a different matter entirely [see below video].

Harrison said at the time of judgement: “I still don’t understand how the courts aren’t filled with similar cases as 99 percent of the popular music that can be heard is reminiscent of something or other.”

The recent infringement case involving Men at Work’s “Down Under” had certain similarities to the Harrison/Chiffons case. Gregg Ham was the flutist for Men at Work. When he played on the 1979 and 1981 recorded versions of the Colin Hay/Ron Strykert composition “Down Under” he added a refrain “for the purpose and with the intention of evoking an Australian flavour in the flute riff“. [see below video]

More than 30 years later that “appropriation” resulted in Hay and Strykert (and their publishers EMI Songs) being successfully sued by Larrikin Music, the owners of the copyright composition “Kookaburra Sits in the Old Gum Tree”, which bore melodic similarity to Ham’s “Australian flavour”. Ham said his musical reference of another copyrighted work was “inadvertent, naive, unconscious, and by the time Men at Work recorded the song… unrecognisable“.

Copyright legislation gives creators of artistic works a monopoly over those works for a limited period of time, and such laws stand right at the intersection of art and commerce. The cultural monopoly granted by legislation seeks to strike a balance between rewarding the investment of time and money made in the creation of artistic works by artists or their benefactors, and our desire as a society to maintain a freedom of cultural expression not unduly restricted by law.

The reason why the “99 per cent” of copyright infringements - as suggested by George Harrison - do not see the cold light of court is largely commercial. Kit Fennessy’s comments in The Age on February 6, 2010 highlighted this tension:

“Kookaburra Sits in the Old Gum Tree uses a bright, major scale. Down Under uses natural, minor chords with a relative major solo; a completely different sound with non-identical notes. You may as well sue the author of Kookaburra for ripping off Twinkle Twinkle Little Star. It is preposterous.”

The enforcement of a disputed copyright can be prohibitively expensive, and the reality is that most art works do not generate sufficient income to justify legal action from an aggrieved owner of a pre-existing work. At the time of the initial ‘Kookaburra/Down Under’ ruling, Colin Hay said: “I believe what has won today is opportunistic greed, and what has suffered is creative musical endeavour,” and in one sense he is right: if Hay’s career never progressed beyond the Cricketer’s Arms in Richmond, he would never have been sued and his creativity would not have been in any way compromised. When art becomes big business, creativity is subject to larger - and more legally minded - commercial forces.

Artist and graphic designer Andy Warhol is an interesting subject when discussing the proprietary value of copyright, because his works again and again infringed on third party copyrights (as did the works of many “Pop” artists. Warhol regularly used copyright controlled materials without permission or attribution, and he produced individual works and entire series’ based on other people’s photographs of Marilyn Monroe, Elvis Presley, Jacqueline Bouvier Kennedy, press shots, and yet these infringements took place almost universally without legal incident over his working life of some 25 years as an internationally renowned artist. Even since his death there have been very few claims brought against his estate.

The Warhol print Green Car Crash (1963, pictured left) - which incorporates an unlicensed press photograph of an horrific car smash up used as the bed for the print - sold for $71,700,000 USD in 2008. At the same moment in time that Green Car Crash set an auction record, the Andy Warhol Foundation for the Visual Arts Inc and the Andy Warhol Art Authentication Board were being litigated against for denying recognition of various works claimed by collectors and art historians to have been authored by Warhol.

Denial of attribution when you are talking Warhol can easily cause problems. An example: the Andy Warhol Art Authentication Board does not question that Warhol’s first print run of the famous ‘Red Series’ of self-portraits is authentic, but it will not endorse his second series of the same pictures. The reasoning of the Board is that Warhol was not present when the second run were printed, although they accept that Warhol was aware that the print had taken place and had even signed one of the prints in the second series.

Warhol’s printer Rupert Smith describes Warhol’s methods mid-1970’s: “We had so much work that even Augusto [the security man] was doing the painting. We were so busy, Andy and I did everything over the phone. We called it “art by telephone.”

Horst Weber von Beeren, who was responsible for painting many of Warhol’s later works has said that Warhol’s primary role in the creation of these paintings was simply to sign them when they were sold. Von Beeren had come to realize that a painting could be an original Andy Warhol whether or not he ever touched it. These works are all happily accepted as ‘original’ Warhols by the Board.

Aside from reinforcing the amount of money at stake in the attribution of authorship to a work, it highlights Warhol’s (unashamedly) tenuous link to much of the artwork that he “created”. The value in his mind being not in the artistic expression of an idea, but of the idea itself – the opposite value to that protected by copyright.

The Pop Art Portraits show in London in 2008 nicely illustrated the occasionally Orwellian nature of copyright in practice. At the show, the 1960s pop art on display was rife with copyright-infringing artworks that sampled everything from Minnie Mouse to Time magazine covers, whilst in the background the London National Portrait Gallery walls were plastered with “no photography” signs and lined with uniformed gallery staff whose job was to ensure patrons did not take (copyright-infringing) photographs of the artworks on display.

At some point, it seems the creative momentum of each generation moves from innovation to protection. This has been emphatically the case for generations born after the Second World War. The baby-boomers were almost single-handedly responsible for creating multi-billion dollar industries in music, film, TV, art, and entertainment geared specifically at teenagers. The huge value of these cultural works – and their ownership by large corporations looking to protect the value of these works – is the main driver towards the vast increase in copyright-related lawsuits in the last 30 years.

It is no coincidence that duration of copyright protection was extended in 1998 from 50 years to 70 years from the death of the author to prevent Disney icons like Mickey Mouse entering the public domain, nor was it surprising that the United States bill bearing the legislative amendment was championed by (and named after) 60s folk singer and former Californian senator Sonny Bono [pictured right].

In practise, lawsuits are not often brought by artists. Aside from the usual commercial limitations, artists are themselves more likely sensitive to the conflicts involved in claiming ‘originality’ of a work. When actions are brought, it is typically to prevent another artist unfairly profiteering from their creation, rather than to receive additional remuneration for the creative energy expended in generating the work in the first place. Thus, the creative monopoly in practise is not generally about use, so much is it about reward. For example, Brazillian artist Jorge Ben Jor sued Rod Stewart after realising “Do Ya Think I’m Sexy” ripped off his melody from “Taj Mahal” [see below video], but withdrew his claim when Stewart donated all royalties from his song to UNICEF.

Such artistic and commercial conflict goes to the very core question of why a work is created in the first place: is the primary imperative commercial, or artistic? Had Marion Sinclair, the author of “Kookaburra…” been alive and in control of the copyright in her song, the likelihood of her suing for an infringement by “Down Under” is probably very low. Artists take pleasure in influencing future works, much in the same way that they were influenced in the creation of their work.

The same emotional response is simply not present when the rights are controlled by a third party corporation. Creative investments deserve to be protected - there are thousands of reasons why - but there is a strong tension at play between creation, appropriation and protection, and between artistic expression and the commercial monopoly which copyright grants over certain elements of that artistic expression.

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Besides his work with Media Arts Lawyers, Julian Hewitt is also the co-founder of a micro-label called Cohen Cooper & Roberts, a music supervisor for various film projects, a lecturer in music law, and he sits on the board of a number of public charities and events including the National Young Writers Festival and the Wired Lab.

He pens the odd self-serving article about how The Wire can be a metaphor for anything if you substitute the words “Chicken McNuggets” with “my idea”, and he also plays synthesizer in several bands and DJs badly. The last act he remixed was the Teenagers, who asked him to pull the saxophone solo out of his mix as it was “not appropriate”. He can be contacted via the Media Arts Lawyers website.