No artist is truly original. That’s OK, we all have to accept we’re only standing on the shoulders of giants.

Following up an earlier post about creative endeavour, here are some thoughts about copyright laws and how they help as much as they can stifle creativity. Warning: the point of this post is not admonishment or laisser-faire attitude; it’s about the complexity of the issue. I’m not talking about file sharing either; this horse (as well as the hope for a balanced opinion on the subject) has been beaten to death.

As stated before, what you thought you just created may be a rehash, a retelling, of another creation. Remembering means constantly re-creating and what you have just drawn or composed may just be a involuntarily remix of past visual or musical experience(s). Your brain is not a hard drive, it’s a storyteller.

But in the real world, the crux of the biscuit (quote © Frank Zappa) is: Can one truly be free to create in this litigation saturated universe? Can the possibility of being sued stop one cold?

Did George Harrison deliberately plagiarize “He’s So Fine” to make “My Sweet Lord”? I don’t know, but here’s what the judge had to say at the trial:

I do not believe he did so deliberately. Nevertheless…this is, under the law, infringement of copyright, and is no less so even though subconsciously accomplished.

In another case, was Jimmy Page oblivious to all the other music heard here? Not many people seem to mind. Is this a case of “Too Big to Fail”? Or should we say that the blues has a history of interchangeable lyrics and riffs?

What then is it to be made of the artistic collage? Would someone today run the risk of being sued for doing exactly what Picasso was doing? Wasn’t that what we now define as “sampling”? There’s a distinction it seems, it’s called “appropriation” (L.H.O.O.Q. anyone?) but it’s still so ambiguous that no artist in his right mind would risk it.

What about Warhol’s Campbell Soup can? Campbell Soup didn’t think it was copyright infringement at the time. But what’s ironic, is that Wikipedia’s entry on it is full of statement about possible infringement and puts forth the argument of fair use.

French scientist Henri Poincaré noted a century ago that to create is merely to choose wisely. But does the choice need to be made by your lawyer?

Copyright laws have changed quite a bit through the years, but it was done so to protect the rights of the creator to benefit from the work thus encouraging more creation… or so it appears to be. As in the case of Warhol, an artist of today would actually be very wary of using anything that could be copyrighted material and probably would not follow his inspiration out of precaution.

Copyright laws were written to stimulate creativity by protecting the right of the creator, but is that encouraging creation? If inspiration can be deemed pilfering by any lawyer, in which way does the balance between protection and innovation shifts.

Proponents of the Sonny Bono Act (a.k.a. the Mickey Mouse Protection Act) argue that it is necessary given that the life expectancy of humans has risen dramatically since Congress passed the original Copyright Act of 1790. That’s why they wanted to extend the copyright duration from 50 to 70 years AFTER the death of the author. Didn’t anybody see the irony?

Food for thought isn’t it? But it goes beyond lawyer fun and games.

In Specimen13 we are aware of our influences and in fact, they have facilitated Mart and I’s initial musical dialogue. Mentioning the same points of reference helps us to communicate ideas quickly; throwing a King Crimson title may cue the other about a certain mood or rhythm. On the other hand, there was once an instance where I pointed out how adding a duple rhythm over the 3/4 Mart had brought would sound real cool. Mart’s answer? It would sound too much like Tool.

This is where we need to step back a bit. In this instance, it was just a simple poly-rhythm over a tune that didn’t sound anything like Tool. Don’t get me wrong; I know why Mart is trying to avoid sounding like a clone of one of our favourite bands, but if it has to stifle creativity, it can create a destructive self-censorship situation.