Tremendous and provocative column. On Day 1 of film school (back when film was art), my first instructor commented that there were only 3 themes in storytelling. Based on that, everything since the bible and Shakespeare would be litigious. Hmmmmm.
Great conversation, Jennifer. Thank you for exploring it so thoughtfully. It's hard because sometimes artists do invent a technique. Generally, though, I think this question of plagiarism has to be evaluated not only through the lens of material and process (which the legal defense seemed to focus on) but also by considering subjective intent and viewer take-aways (which your article did). Can a signature be made the same way but have a different life to it, making it a different signature? It seems like that doesn't apply to this case. One other thought: How does profit change the evaluation process? If the artist wasn't making any money off of this work, would anyone care if it was copyright infringement?
Jennifer, you have highlighted an important legal and artistic issue. There is a similar issue is trademark law, and the courts do, in fact, look to the question whether the public is likely to be confused by similar names and logos (e.g., Dove soap vs. Dove chocolate). Roberts argument is based on that body of precedent. But I don't think that analysis should be applied to art. To do so would put a straight jacket on artists. Artists all steal from other artists. We have to: that is how art develops and how artists develop. "Steal" is the key word, because to steal something is to make it your own. Ten years from now, some artists who stole style ideas from Roberts (like the artists that stole from Picasso) will build on what they took to create something very distinctively new. Ideas are free for the taking . . . and need to be.
Sep 28, 2022·edited Sep 28, 2022Liked by Jennifer Rabin
Such a vital question and an excellent breakdown of it. In my New York crowd of artist friends (visual art, theater, and film), this discussion usually fell into one of four categories: inspired by (where we feel that something new has been created), homage (seeming to clearly point toward the inspiration), derivative (works that felt like bland but not ill-intentioned copycatting without original thoughts), and outright copying (which felt most like a craven scam to make money). It always seemed easiest to manage this discussion when the artists were of different, or slightly different, generations. For artists coming up together, it can definitely get trickier and harder to sort. In the best cases, it seems like people can bounce off each other and everyone can bring new things to the table. In the worst, it feels like one is riding the other’s coattails because they can’t come up with their own directions. When one is established and the other is not, obviously it brings a dangerous power dynamic to bear. We certainly have seemingly endless examples of well-known artists stealing work from unknown artists and claiming it as their own, and their power status affords them the opportunity to do so, often without any repercussions. But there are also instances of lesser known artists quietly making a living by flying under the radar while copying well-known artists’ work. It’s a sticky wicket to sort it all out and feels inherently resistant to a standardized-rubric solution. In my own circles of working artists, so much of it comes down to intent and generally requires discussion to sort out.
Tremendous and provocative column. On Day 1 of film school (back when film was art), my first instructor commented that there were only 3 themes in storytelling. Based on that, everything since the bible and Shakespeare would be litigious. Hmmmmm.
Great conversation, Jennifer. Thank you for exploring it so thoughtfully. It's hard because sometimes artists do invent a technique. Generally, though, I think this question of plagiarism has to be evaluated not only through the lens of material and process (which the legal defense seemed to focus on) but also by considering subjective intent and viewer take-aways (which your article did). Can a signature be made the same way but have a different life to it, making it a different signature? It seems like that doesn't apply to this case. One other thought: How does profit change the evaluation process? If the artist wasn't making any money off of this work, would anyone care if it was copyright infringement?
Jennifer, you have highlighted an important legal and artistic issue. There is a similar issue is trademark law, and the courts do, in fact, look to the question whether the public is likely to be confused by similar names and logos (e.g., Dove soap vs. Dove chocolate). Roberts argument is based on that body of precedent. But I don't think that analysis should be applied to art. To do so would put a straight jacket on artists. Artists all steal from other artists. We have to: that is how art develops and how artists develop. "Steal" is the key word, because to steal something is to make it your own. Ten years from now, some artists who stole style ideas from Roberts (like the artists that stole from Picasso) will build on what they took to create something very distinctively new. Ideas are free for the taking . . . and need to be.
Such a vital question and an excellent breakdown of it. In my New York crowd of artist friends (visual art, theater, and film), this discussion usually fell into one of four categories: inspired by (where we feel that something new has been created), homage (seeming to clearly point toward the inspiration), derivative (works that felt like bland but not ill-intentioned copycatting without original thoughts), and outright copying (which felt most like a craven scam to make money). It always seemed easiest to manage this discussion when the artists were of different, or slightly different, generations. For artists coming up together, it can definitely get trickier and harder to sort. In the best cases, it seems like people can bounce off each other and everyone can bring new things to the table. In the worst, it feels like one is riding the other’s coattails because they can’t come up with their own directions. When one is established and the other is not, obviously it brings a dangerous power dynamic to bear. We certainly have seemingly endless examples of well-known artists stealing work from unknown artists and claiming it as their own, and their power status affords them the opportunity to do so, often without any repercussions. But there are also instances of lesser known artists quietly making a living by flying under the radar while copying well-known artists’ work. It’s a sticky wicket to sort it all out and feels inherently resistant to a standardized-rubric solution. In my own circles of working artists, so much of it comes down to intent and generally requires discussion to sort out.