Copying Is Not Creativity! Why Creative Artists Don’t Need the Public Domain - Office of Copyright

Copying Is Not Creativity! Why Creative Artists Don’t Need the Public Domain is a very interesting and thought-provoking blog post by Stephen Carlisle JD, Copyright Officer of Nova Southeastern University in Fort Lauderdale, Florida. Refuting the oft-cited dictum of either Stravinsky or Picasso, to the effect that great artists steal (he cites evidence that they didn't say it, which actually seems to be more like a lack of evidence that they did, along with a quote from TS Eliot that is supposedly what people think they are referring to, which became somewhat distorted because it really extols the virtues not of copying but of transforming an inferior piece of work), he takes issue with Judge Alex Kozinski (a brave move) who expressed the view (in his dissenting opinion in White v. Samsung Electronics America, 969 F.2d 1512, Ninth Circuit Court of Appeals, 1993 at page 1513) that everything in history has relied on copying:

“Creativity is impossible without a rich public domain. Nothing today, likely nothing since we tamed fire is genuinely new: Culture, like science and technology grows by accretion, each new creator building on the works of those who came before. Overprotection stifles the very creative forces it’s supposed to nurture.”

Creative people not only don't need a public domain, Mr Carlisle argues, but it actually holds them back from being truly creative. Copyright doesn't protect ideas (or, you might say, ideas are firmly in the public domain), and that is what creative people need to work with. Great stuff. Copyright might be over-powerful, but what is needed (to my mind - this is not Mr Carlisle speaking) is not the present constant process of erosion - death by a thousand permitted acts, or "exceptions" as the philistines in government prefer - but a fundamental reappraisal of some key issues, like the worthless originality test.

In an earlier posting, which I found following a link from the artist's Facebook page (in the modern world that is how these things happen), Mr Carlisle had criticised the decision of Judge Jesse Furman in Dean v. Cameron, 2014 WL 4638355, Southern District of New York, 2014, to dismiss Roger Dean's claim against the director of the motion picture Avatar. Read his explanation of where the court went wrong by considering individual Dean artworks rather than the "total concept and feel" of his oeuvre - which no-one could deny is original and distinctive, and which many commentators also feel is reflected in the Cameron film. Even Mr Cameron seems to admit that Dean's work was a major influence (but then again, who could visualise a fantasy world without paying homage to the master?).

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