{"id":9956,"date":"2012-10-20T10:32:38","date_gmt":"2012-10-20T14:32:38","guid":{"rendered":"https:\/\/webhostinggeeks.com\/blog\/?p=9956"},"modified":"2021-10-19T06:49:47","modified_gmt":"2021-10-19T10:49:47","slug":"geek-ethicist-stealing-ethically","status":"publish","type":"post","link":"https:\/\/webhostinggeeks.com\/blog\/geek-ethicist-stealing-ethically\/","title":{"rendered":"Geek Ethicist: Stealing Ethically"},"content":{"rendered":"

“Dear Ethicist–
\nI am an artist and a graphic designer. Lately I’ve been thinking about “derivative works,” mostly due to the press surrounding Shepard Fairey’s Obama<\/a> photo and the recent court ruling<\/a>.
\nEvery artist is inspired by something: nature, another work of art, another artist, a book, a blog, a comment made by a friend. I would argue that every work is a derivative work. One of my favorite books, Steal Like an Artist<\/a>, by Austin Kleon purports to tell its readers how to steal, i.e. how to be inspired and transform that inspiration into a work of your own.
\nThe internet has ushered in an age of convoluted inspiration: it’s hard to tell what is original, what is “derivative” and what is just plain ripped off. \u00a0My understanding is copyright’s vague enough to leave the interpretation up to the institution or artist, as we see from the court ruling with Fairey: “the AP and Mr. Fairey have agreed that neither side surrenders its view of the law.” Which basically means, they both still believe they are right!
\nSo my question for you, Mr. Ethicist, is this: How much does an artist have to change something for it to be considered a “derivative work”? And are derivative works, in their essence, unethical? If that’s true, do you believe there is absolute creativity: creativity that exists in a vacuum and has no outside influences?
\nSign me-
\nStumped”<\/p>\n

Dear Stumped,
\nWow! \u00a0First let me make a few legal distinctions then tell you my final answer will be based on ethics rather than law. \u00a0Clearly the ethical and legal are not the same. \u00a0It is legal in America to cheat and then lie to your spouse, but it is not easily justified ethically. \u00a0It is not legal to steal bread to save your starving child\u2019s life, but it is very easily justified ethically. So law first.<\/p>\n

Derivative or Transformative<\/h2>\n

The problem, legally, revolves around two ways of using someone else\u2019s artwork: \u00a0Derivative use and Transformative derivative use. \u00a0Mere derivative use is not Fair use; transformative use is<\/em>\u00a0Fair use.<\/p>\n

In non-lawyerly terms, if you take someone\u2019s work and mess with it a bit, like mirror imaging it, or colorizing it, or even copying it precisely by hand\u00a0it\u2019s still the same work of art, and the courts figure you are just trying to rip it off for free. \u00a0This is not fair use of the original work. \u00a0That means what you are using is derived from the original but it is still legally the original work and owned entirely by someone else. \u00a0So, if what you use is simply derivative it is still someone else\u2019s property, and you better have permission both to use the original work AND permission to mess with it if you want to change it. \u00a0 Messing with it<\/a> is entirely the right of the owner, not you.<\/p>\n

\"Duchamp<\/a>

Duchamp’s “L.H.O.O.Q.” courtesy of Smithsonian Magazine<\/p><\/div>\n

If, however, you manage to change the work of art to mean something entirely different, something considered a public benefit in some way, then you have transformed that recognizable work into something really new, and that is<\/em> fair use of someone else\u2019s original work. The transformative use is still derived from the original, but the big picture –the art<\/em> of the work– has been substantially creatively changed. This does not necessarily mean a big material change either. \u00a0A mustache on the Mona Lisa does it! \u00a0The best example of legally acceptable transformative use is a parody. To parody a work, the original obviously has to be \u00a0recognizable but certainly will not be experienced the way the initial artist intended; so parody is considered fair use.<\/p>\n

Now…do not, even for an instant, think that a mere armchair legal novice can make these distinctions without taking a serious risk. \u00a0For example, you may think something you do to a copyrighted work is parody, but the court may decide you are harming the artist\u2019s protected interests or simply destroying the artist\u2019s work or even confusing parody with satire<\/a>\u00a0and those are expensive copyright infringements!<\/p>\n

Marcel Duchamp and Andy Warhol were two champions of taking a recognizable work and changing it slightly, but through their artistic ability, utterly transforming the derivative piece into something entirely different. Mona Lisa with a mustache<\/a>\u00a0 is not at all the Mona Lisa, nor is a Warhol’s silkscreen of Campbell\u2019s tomato soup cans<\/a>\u00a0 a mere derivative picture of Campbell\u2019s logo. \u00a0Both of these are transformative uses of the original work. \u00a0New York sculptor, Jeff Koons, on the other hand, was not such an expert and lost a pretty big legal case when he sculpted a bit too precisely a photo of puppies by Art Rogers<\/a> without getting permission from Rogers first. \u00a0Obviously the court didn\u2019t think Koons was much of parodic comedian.<\/p>\n

OK, now to the Obama picture<\/a>. Yes, it is derivative and No, it is not transformative. \u00a0So it is a simple copyright infringement. \u00a0It looks like the original picture of Obama; it was supposed to look like the original picture; it has the same expression as the original picture. \u00a0Fairey took someone else\u2019s picture, without permission, and messed with it a bit. \u00a0But it is still clearly and recognizably the same picture. \u00a0So to not-a-lawyer me, Fairey did not steal like an artist, he stole like a crook.<\/p>\n

Stealing Ethically<\/h2>\n

Then how do<\/em> you steal like an artist? \u00a0And I entirely agree: all art is derivative. So every artist has to be a bit of a crook, albeit ethical crook. \u00a0No art in a vacuum, ever. As Michael Kahn writes, \u201cArtists understand that all art is ultimately derivative. For example, Ernest Hemingway wrote, \u2018All modern American literature comes from one book by Mark Twain called Huckleberry Finn.\u2019\u201d \u00a0Influence is impossible to avoid, and should not be denied. \u00a0The ethical issue is whether you attempt to deceive yourself or others about that influence. Lack of integrity is the moral flaw. \u00a0So the moral artist steals honestly. Derivatively ripping off Newton and others here, \u201crespect the shoulders of the giants upon whom you are standing.\u201d<\/p>\n

Posted Personal Photos Ought to be Public Domain<\/h2>\n

Though it is not the law, when people post photographs online without explicitly copyrighting them in some manner they ought to lose their exclusive rights to their photographs. They are intentionally trying to become famous<\/a>. \u00a0 According to photographer lawyer Carolyn E. Wright<\/a>, \u201cSome legal scholars think… that many photographs are not entitled to copyright protection (this is often referred to as a “thin copyright”) where there is not much original copyrightable expression in a particular work.\u201d I go further: posting pictures without \u00a0making one’s ownership right explicit, implies intentionally introducing your photograph into the public domain, just as throwing your money in the street would.<\/p>\n

If you post a picture of your newest hat or your baby being born, you intentionally publicised that photograph for public use. The internet by its very nature is a public domain advertising medium, so what you post you distribute to the world. \u00a0That makes your photograph public domain unless explicitly stated otherwise. \u00a0\u00a0Your vacation photos of public places like the Sistine Chapel or Mount Rushmore are no longer your exclusive property once posted. \u00a0There is a big distinction between photographs in art galleries and books and those submitted freely on the internet. \u00a0Museums and books assure exclusive rights, the internet does not. \u00a0So Fairey, though legally guilty, would not \u00a0have been morally culpable had he taken someone\u2019s public domain photograph honestly, but instead he ripped off an explicitly copyrighted AP photo: artistic FAIL.
\n<\/strong><\/p>\n

 <\/p>\n

Emily Cantin researched, co-authored and created original artwork for this article.<\/p>\n","protected":false},"excerpt":{"rendered":"

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