Why Do Some People Have A Mythical Standard Of 'Newness' To Determine What Qualifies As Art?

from the what's-really-new? dept

Tue, Mar 29th 2011 9:38am — Mike Masnick

In our recent discussion on the ruling against Richard Prince, saying that his appropriation art is infringing and should be destroyed, I'm seeing a somewhat disturbing response from people who disagree with Prince: they seem to have some mythological idea that for any artwork to matter, it must somehow be "new." I have trouble with this standard for a few separate reasons:

What determines what is really new?

If you look at the history of music, for example, things like the invention of soul music really involved a very close copy of works that had come before. There was very little new. Ditto with all kinds of rock music. Led Zeppelin is famous for nearly every famous song they had being a near direct copy from someone else. The changes made were minor, but created massive successes -- showing that people seemed to really like these "copies," even if there was very little new in them. It seems, to me, that clearly something important was "new" in that people liked the copies much more than the originals.

One of the complaints in the discussion on Prince's work is that he "didn't spend much time" in creating his artwork, since he basically started with Cariou's work, tinted it, and added a few minor adjustments. Perhaps that's true, but it seems likely that he spent more time than Cariou did in taking the photograph in the first place. I'm not -- as some accused -- arguing that Cariou's work isn't art. Quite the opposite. I'm saying that the time involved is not a statement of what is and what is not artwork either. After all, Carious quite literally "copied" the scene that he photographed. He gets a copyright on it because of a few creative choices, but these are minor: where to position himself, how to frame the photograph etc. But are those really all that different from Prince's decisions of "how to tint, what to change, what to add?" I can't see how one is art and the other is a copy. It seems like both are art to me, even if I'm not personally impressed by Prince's work.

Does it really matter if the copy isn't really new?

And here's the bigger point. If people really enjoy those works, why are we so upset that they're copies with minor changes? Ray Charles had success with "I've Got a Woman," despite it really being the same basic song as the Harold Bailey Gospel Singers, called "I've Got a Savior," with just moderately changed lyrics, and a little more pizazz in the music. Led Zeppelin's most classic hit, "Stairway to Heaven," is a pretty close copy the song "Taurus," by Spirit. And Richard Prince's paintings involve just moderate changes to Patrick Cariou's photographs. And, yet, in all three cases, the markets seemed to value the latter versions more. Doesn't that suggest that, even if these newer works are "mostly" copies, that they provide significant value in the marketplace?

Why does it matter that they're not "new" by some subjective standard?

If the world really felt that there was something fundamentally wrong with these copies with minor changes, then wouldn't they have rejected the market for them? Would the world have been a better place if we didn't have "I've Got a Woman," but were just left with "I've Got a Savior," a song so hard to find these days that James Boyle could only find a single copy in existence when he wrote his book which told the story of the song?

Isn't the world actually better off that we have these "copies with marginal changes"? Why do people feel the need to complain about them?

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Filed Under: art, creativity, culture, new

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Anonymous Coward, 29 Mar 2011 @ 9:44am

Anytime a "new work" uses a bunch of someone else's work, try this:

Remove the "borrowed" parts of the new work.

Then look at what you have left.
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Anonymous Coward, 29 Mar 2011 @ 9:48am

The Prince thing is very simple: He added so little "new", that it wasn't really new at all.

A whole new performance of music, even if it is exactly the same song performed by different people, is "new". The Red Hot Chili Peppers covering a Stevie Wonder song was "new", even if the song was old. A member of the Red Hot Chili Peppers playing a Stevie Wonder record for a crowd would not be "new". The difference is obvious.

Prince's work was neither new nor transformative, it was just a pure copy with a couple of cutouts on it. The vast majority of the "art" was just someone else's product with a very minor alteration. It would be akin to that RHCP member playing the Stevie Wonder song and yelling "COW!!!" once in the middle if it, and claiming the whole work as "new" and "art", which it is neither. Now, if the band performed the song live and added "COW" in the middle of it, it would be a performance and therefore "art" of some sort, no matter how original or unoriginal the "cow" part was.

I think you are just playing at trying to parallel two things that don't line up well, and trying to make excused for horrible "remix" culture that created little if anything new.
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Anonymous Coward, 29 Mar 2011 @ 9:49am

Re:
Two words:

Family Guy
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Anonymous Coward, 29 Mar 2011 @ 9:55am

Re:
"...horrible "remix" culture that created little if anything new."

The PC game modding community would like to have a little chat with you. And by chat, I actually mean beating the holy Jim out of you with a baseball bat.

Play vanilla UT and have. Then toss in a few good mods, and bow before the might of the community.
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Anonymous Coward, 29 Mar 2011 @ 9:58am

Taurus, not Taurs.
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Anonymous Coward, 29 Mar 2011 @ 10:02am

Re: Re:
Sort of not the same, is it? They don't claim the original UT as part of their work, do they?
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Markus (profile), 29 Mar 2011 @ 10:02am

Re:
So if you're performing something live, that automatically gets to be "art" even if you're attempting to duplicate the old song as closely as you can? And yet, in a piece of art, when you're attempting to make a completely different statement from the one made in the original, it's not art simply because the original is a large component of the work? How does this make any sense? If I edit an actual smile to the Mona Lisa, I've changed the entire tone of the work, and have probably done something much less noteworthy than Da Vinci, but I've definitely created something different, since you would simply not have the same reaction to the painting any more. Even if you think I've merely ruined it, everything about the portrait has changed, and that only requires on very small alteration. Also, what exactly does "he added so little 'new," that it wasn't really new at all" even mean? Did he add something new or didn't he?
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Marcus Carab (profile), 29 Mar 2011 @ 10:04am

Re:
So I guess it is your stance that photography is not art? After all, remove the "borrowed" image and nothing is left.
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Anonymous Coward, 29 Mar 2011 @ 10:07am

Re: Re:
one word:

parody.
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Michael, 29 Mar 2011 @ 10:08am

Re:
Ok.

Find me a new work that hasn't borrowed anything.
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Michael, 29 Mar 2011 @ 10:11am

Re:
"A whole new performance of music, even if it is exactly the same song performed by different people, is "new""

How is painting something that you saw in a photograph not just as much a new performance?
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John Doe, 29 Mar 2011 @ 10:11am

I have to quibble with the photography statement
This is mostly off topic here, but the statement about taking the photograph with a few minor choices is completely wrong. Photography is limited to a few choices such as f-stop (depth of field), shutter speed (motion blur), ISO (speed/light sensitivity of the film/sensor) and focal length of the lens. But add these three choices together and then throw in all that can be done in post processing and photography becomes much more than just a few choices.

Sorry for the mild rant, its just that many people do not see photography as art like they do painting. To take a truly great photo can take as much time, effort and attention to detail as painting. After all, photography literally means drawing with light.
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Michael, 29 Mar 2011 @ 10:13am

Re:
Another question:

Do you feel taking a picture of a statue is art, or copying?
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Steven (profile), 29 Mar 2011 @ 10:15am

Re: Re: Re:
How can they not? without the original UT the mods would be almost nothing
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Kaden (profile), 29 Mar 2011 @ 10:15am

Watching the contortions people go through trying to make laws apply to art makes it abundantly clear that they understand neither subject.
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freak (profile), 29 Mar 2011 @ 10:19am

Re: Re: Re:
Alright, take a look at Tremulous, which is a mod for a FPS.

Or maybe it's a stand-alone game.

I'm not really sure.
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Anonymous Coward, 29 Mar 2011 @ 10:20am

I feel the need to complain when the "new" work is garbage. Like when rap/hip-hop "artists", or rather their producers, basically create a "new" song using most of an old classic song (which is almost always better than the "new" work) and then topped off with money/cars/drugs/hos lyrics.

The popularity of the "new" work is irrelevant and does not justify its existence.
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Markus (profile), 29 Mar 2011 @ 10:22am

Re: I have to quibble with the photography statement
I'm pretty sure you're making Mike's point. You ARE just making a few choices, but the cumulative effect is massive, and no one is saying that making the "right" choices is easy. Other choices you make are your subject, time of day, etc. But again, this is not all that different from Prince. Even if you think he is lacking in skill and making the "wrong" choices, he is making choices about what to add/change, and he is taking advantage of the same post processing you mention in order to do so.
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Chosen Reject (profile), 29 Mar 2011 @ 10:22am

Re:
The Prince thing actually is very simple. What he did was art. It is new. If you were in the market for Cariou's photos, would you be willing to accept Prince's work as an alternative? No? Then Prince's work is different, thus new. It is transformative, because you wouldn't accept it as a replacement for Cariou's photos.

If the RHCP played a Stevie Wonder song and yelled "COW" in the middle of it, it would be art, if that was their intention. If they simply yelled "COW" because they were shocked to see a cow while they happened to be playing the song, then that would not be art. But if they intended to yell it, then it becomes art. It probably wouldn't be good art, but art doesn't need to be good to be art. Art can be downright terrible, lame, stupid, just plain bad. However, I could see the judicious use of a simple phrase yelled at a certain moment during a specific song as being quite funny or perhaps even thought provoking and thus that art could be good. Perhaps there is a place in Stevie Wonder's song where yelling COW would be good art.
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Markus (profile), 29 Mar 2011 @ 10:24am

Re:
Who crowned you the arbiter of what art is "justified?" That sounds dangerously close to censorship, friend.
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Marcus Carab (profile), 29 Mar 2011 @ 10:25am

Re:
The popularity of the "new" work is irrelevant and does not justify its existence.

If not popularity, then what? Shall we found a Ministry of Art to determine what counts and what doesn't? Who will be our arbiter of "Art or Not-Art"? What qualifications will they have? How will they be trained? What criteria will they use? Will they be elected? Appointed? Will the public get a say in their decisions?

Popularity is the only reasonable way to assign value to art in a capitalist economy.
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Markus (profile), 29 Mar 2011 @ 10:25am

Re: Re:
I doubt that arbiters are crowned at all, now that I think of it. My point still stands though. It stands tall...
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Markus (profile), 29 Mar 2011 @ 10:26am

Re: Re:
Marcus, you read my mind.
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Anonymous Coward, 29 Mar 2011 @ 10:27am

Re: Re: Re: Re:
And? I didn't create music, but I can play some. I don't claim having invented music. I can copy yours too; I still don't have invented it.
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Anonymous Coward, 29 Mar 2011 @ 10:28am

Re: Re:
Copying. Where's the art? IN the picture; not THE picture.
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Anonymous Coward, 29 Mar 2011 @ 10:30am

Art is essentially about communication, like the Internet! Art is the conversation that humanity has with itself. Sometimes artists have to continue a dialogue that started a long time ago and I can understand why others don't like that but it's not really up them.
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Michael, 29 Mar 2011 @ 10:34am

Re: Re: Re:
At what point is there enough art? If you add a jacket, glasses, and fake mustache to the statue, then take the picture? What if something else is in the picture as well? Can I make the picture so grainy that you cannot identify the statue? Is the shadow of the statue off limits - what about a picture of that? (that sounds like a cool project to me, actually - I may do something like that).
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Anonymous Coward, 29 Mar 2011 @ 10:34am

Re: Re:
A good example is that there are groups / acts / musical emsembles who do "off the record" shows, attempting to recreate and replicate an entire record down to it's smallest detail live. It isn't the original group or original artists, but they are all musicians attempting to do something very specific.

They could accomplish a similar result by just playing the record, but only one of them involves a new performance, and one of them is just playing a recorded piece. Even in the quest for perfect duplication, a musician will always end up putting their own spin or own skill into the piece, presenting something that is every so slightly different. Further, they will have had to make the effort from start to finish to make that performance.

Now, here is what is key to Prince: the new performance is "art" in and of itself, but it does not free the performers from the rights of the original piece. That is to say that even as their new performance is art in and of itself, they are still obliged to pay for the rights to the original songs they are replicating, even as they play it themselves.

In the music business, there are various levels of licensing to cover just this sort of thing. The music industry is in fact very well organized to handle just this sort of thing, with standard contracts, methods, etc.

The art world doesn't appear to be as well organized, and for the most part artists do not appear to want their work "re-used". Outside of some photo licensing websites, there isn't much out there. Often these licenses do not permit any transformative use of the images, or restricts how they may be re-sold going forward.

Prince's main mistake is ignoring the concept that the rights holder controls their work.

If you modify the Mona Lisa, while you have "added" something, the underlying work is not yours. You didn't bring much to the table.
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Steven (profile), 29 Mar 2011 @ 10:37am

Re: Re: Re: Re: Re:
Ah, Is this the right room for an argument?

Seriously it seems you just want to argue in circles and make random analogies that don't really fit.

UT is a game that took tons of developer time to create. Some modders take this base, add a few small elements, and a whole NEW thing is created. The mod is worthless without the UT game, but you can't really argue (at least not reasonably) that it isn't a new creation that adds value.
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Chosen Reject (profile), 29 Mar 2011 @ 10:40am

Re: Re: Re:
Right, because there is absolutely nothing artistic about taking a picture of David
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AdamBv1 (profile), 29 Mar 2011 @ 10:44am

Re:
"Prince's work was neither new nor transformative, it was just a pure copy with a couple of cutouts on it."

So which is it, a pure copy or a new work with cutouts added to it? It can't be both at the same time.
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Gary Kilroy, 29 Mar 2011 @ 10:46am

Is this new? http://www.artchive.com/artchive/W/warhol/campbells.jpg.html
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Chosen Reject (profile), 29 Mar 2011 @ 10:46am

Re: Re:
Spot on, except I'd change popularity with demand. Nothing needs popularity, only enough demand. That demand can come from a single person. That single person can be the artist.
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Jay (profile), 29 Mar 2011 @ 10:47am

Re: Re: Re:
Valve started with an Unreal engine. It went on to create its source engine. There are VAST amounts of difference there. Very soon, I'm going to post about Valve and how they've been inspired by creative culture, but for now, you have little in regards to an argument.
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Anonymous Coward, 29 Mar 2011 @ 10:48am

Re: Re: Re:
Not the point. The guy/gal above claimed that nothing good came of the remix culture. I present mods as counter-point.

Remixing involves taking something someone made (like the UT engine or some guy's song) and bending, shaping and slamming it until it becomes something new that you like.

Some people are content with changing a texture or two (or sticking "Cow" into the middle of the song), while others take things to the extreme and change everything.

But, is it "art"? Is it "new"? It is not up to us to decide. Beauty is in the eye of the beholder, but I, for one, very much enjoy many mods created for many games. Remixes aren't evil: BAD remixes are.

PS: There is just one thing I don't enjoy: plagiarism. If you take someone's work and changes it (or present it as is), give some credit. It's just a matter of good manners.
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Anonymous Coward, 29 Mar 2011 @ 10:49am

Re: I have to quibble with the photography statement
While I totally agree there can be much more to creating a photo than what many people think there is, I chuckle because this past weekend I got to visit a wolf/wolf-dog rescue preserve. While in the enclosure with these critters I had only my phone for a camera, they never sat still, it was very sunny, and I couldn't actually see the pictures I was trying to take due to glare, but I got one or two damn good pictures somehow. Couldn't take too many, was afraid they'd grab the phone and run off with it.

Wrassling a wolf-dog for anything it wants to keep is not something I'd happily do.

I was really pleased that I got the few good shots I did, though. Chance and luck at work.

I'm a painter, and even then, when seems all you do is plan or think about this or that process or element of it, sometimes it's just plain luck that makes it work out, a brain-dulling headcold, a tossed off comment, a stray thought before sleep, an inadvertent brush stroke - all of those have helped me to see beyond my own uber-concious view of what I was trying to accomplish (I wish it happened more often, heh).

It shocks and disgusts me that the judge ordered Prince's works destroyed...that is beyond the pale. No matter what he used to springboard, it's still work he did, his artist's hand is very much apparent. I can't help but wonder who wouldn't find that grotesque no matter what one thinks of the work itself.

/ramble ;)
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Greg G (profile), 29 Mar 2011 @ 10:50am

Re: Re:
Two Words

Road House
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Marcus Carab (profile), 29 Mar 2011 @ 10:51am

Re: Re: Re:
Heh, and you mine, my similarly-named friend. I grinned after submitting my comment and seeing you beat me to the term "arbiter"
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Greg G (profile), 29 Mar 2011 @ 10:52am

Re: Re: Re: Re: Re: Re:
Ah, Is this the right room for an argument?

Ah, no, this is abuse. Arguments are down the hall.
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Anonymous Coward, 29 Mar 2011 @ 10:54am

Re: Re:
'...til I reach the higher COW!'
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Anonymous Coward, 29 Mar 2011 @ 10:54am

Re: Re: Re:
Several words:

Yes, it's parody. But what we are discussing here is if it is "new" enough to be considered original. Given the fact that 90% of the show revolves around jokes like "Hey, it's just like time when I was in [well known town or famous landmark] and [famous person] did [something remotely funny].". Take the side references and what do you have? 1 minute of show (in a good episode).
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vivaelamor (profile), 29 Mar 2011 @ 10:55am

Re: Re: Re:
"In the music business, there are various levels of licensing to cover just this sort of thing. The music industry is in fact very well organized to handle just this sort of thing, with standard contracts, methods, etc."

Let's get this straight. You were arguing that Prince's work isn't art, but covering music is. You then point to the royalty system as justification for cover music being OK, completely departing from the issue of whether it's art or not.

You then go on to suggest that the main issue is that prince is ignoring the copyright holders right to control their work. If that is the main issue then why don't cover bands have to ask permission for every song they use? I don't see where the concept of control enters into it as royalties don't afford control, just money.

I'm really struggling to spot a coherent argument there. You seem to be heading in three directions at once.
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Alfie, 29 Mar 2011 @ 10:59am

Re:
"The Prince thing is very simple: He added so little "new", that it wasn't really new at all."

But... What is 'enough' to make something 'new'? It seems that the reasoning above is fundamentally flawed: Like so much of modern art, intentionality is the core of what the work means, and so even the absence of any material change might be construed as art if the intention is well stated.
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Anonymous Coward, 29 Mar 2011 @ 11:03am

Re: Re:
The original photograph in question borrowed nothing. It is a unique picture of a unique moment from a unique perspective.
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Markus (profile), 29 Mar 2011 @ 11:06am

Re: Re: Re:
Couple things here. First, it doesn't matter if licenses don't permit transformative use, that's what a fair use analysis is for. Second, the other commenter (or was it you?) was making the point that the analogy does not hold, or at least that's the point I thought they (you?) were making. You seem to be saying it works just fine. I'd personally not mind seeing a similar mechanical license for covering photos in the same way that covers cannot be stopped in the music industry, but I think fair use is a much better mechanism for evaluating how much Prince or I brought to the table, and whether the markets for the works overlap, etc.
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Marcus Carab (profile), 29 Mar 2011 @ 11:07am

Re: Re: Re: Re:
I think you are exaggerating a little. Some episodes rely heavily on the manatee-writing that south park lampooned, yes - but others actually contain quite a lot of original writing. Check out the insanely well-constructed concept episode "Brian & Stewie" for an excellent example of that (entire episode takes place in one room, with no cut-scenes whatsoever)

But more importantly, why can references alone not be art? If someone combines countless pop culture references in a way that tonnes of people enjoy and find hilarious, then they did a creative job, and as far as I'm concerned it counts as art. If Family Guy makes a dumb joke about Casablanca and everyone laughs, then they added value - after all, while those same viewers could go watch Casablanca, they wouldn't find it hilarious.
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Anonymous Coward, 29 Mar 2011 @ 11:07am

As an artist
.. I'm shocked and appalled that the judge did, or even could, order the work DESTROYED. It's art, that he created, using his own ideas and motivation, regardless of what it's built upon. IF (and that's a BIG if), it was found to be in violation, or infringing on something, I could understand restricting the artist from selling or showing the piece, but to order it destroyed is ridiculous and WAAAAY over-reaching the courts authority.
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Anonymous Coward, 29 Mar 2011 @ 11:09am

Re: Re: Re:
And if 1000 photographers were behind the original photographer, how unique would it be then?
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Marcus Carab (profile), 29 Mar 2011 @ 11:10am

Re: Re: Re:
Well then, you should go find that rasta and explain to him that his appearance - including his gait, facial expression, hairstyle and clothing - are not attributable to him at all, and in fact did not exist until they were photographed.

I mean really now. If you truly believe that the photograph borrowed nothing, then why did the photographer choose that particular subject? Why not just take a photo of a shoelace instead?
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Anonymous Coward, 29 Mar 2011 @ 11:16am

Re: Re: Re: Re:
Let's get this straight. You were arguing that Prince's work isn't art, but covering music is

No, don't be dense.

Covering music requires performance, and the performance creates "art" in some sense. It would be in the same manner as an actor playing Hamlet. The story doesn't change, but each performance is art in itself. The artist (performer) can claim the work (performance) as his own.

Prince? If it was acting, it would be like playing a DVD of hamlet, and for 1 minute, standing in front of the screen saying "I am hamlet", and then claiming the entire performance on the DVD as his own. He took someone else's performance (the photograph) and added very little to it. There is no performance here.

I don't see where the concept of control enters into it as royalties don't afford control, just money.

Actually, royalties are the way of paying for ceded control. It is the contractual fulfillment, the "valuable consideration" for the rights granted. It is a contract.

I'm really struggling to spot a coherent argument there. You seem to be heading in three directions at once.

perhaps you should read more slowly. Mike is trying to compare to music, but the comparison isn't fair because there is a performance component that isn't present in copying photographs. 10 musicians can play the same song, and each one is a unique performance (and the performance can be copyright, even if they underlying music rights belongs to another). So Mike's comparison isn't exactly equal. Plus each of Mike's examples are music which is substantially different in performance than the originals cited, with much added, removed, and changed in composition and performance.

If Prince has sought permission, I still don't think his "work" qualifies as art, but that would be for others to determine. But even to an untrained eye, you can see that his "work" is mostly a copy of the other work, with no variation in presentation or performance. It isn't trans formative, it isn't a personal interpretation, it is a copy. The "art" question is moot at that point.
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crade (profile), 29 Mar 2011 @ 11:17am

Re: Re:
The way I use a camera it's about as artistic as using the "cp " command on my computer :)
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Anonymous Coward, 29 Mar 2011 @ 11:21am

Not Comparible
Music vs Art really is like comparing apples to oranges... they have completly diffrent rules... Music has historicly alowed smaller changes to be considered new, where as art from what I have heard is at least 20% of the artwork needs to change to be consided a new work...
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Anonymous Coward, 29 Mar 2011 @ 11:22am

Re: Re: Re: Re: Re:
BS... So, if 10 musicians play the same song, there are 10 unique pieces of art, but if 10 artists paint the same picture, create the same image, that's a copy?

Doesn't make sense. I can see this analogy being easier to understand when thinking about a painting, every brush stroke is unique to the hand making it, but that doesn't invalidate the argument when dealing with digital art.

btw - LOVE the andy warhol example. Does that count? I mean really, it's just a "copy" of a cambells soup can? Where's the art?

Just because YOU DON'T UNDERSTAND IT, doesn't mean it's not art. (personally I never got the toilet, but it still managed to be art).
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ChurchHatesTucker (profile), 29 Mar 2011 @ 11:32am

Re: Re: Re:
I'd say it's more like a regular expression. There's a lot of thought behind it, but mostly about what you're excluding.
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Mike Masnick (profile), 29 Mar 2011 @ 11:57am

Re: I have to quibble with the photography statement
This is mostly off topic here, but the statement about taking the photograph with a few minor choices is completely wrong. Photography is limited to a few choices such as f-stop (depth of field), shutter speed (motion blur), ISO (speed/light sensitivity of the film/sensor) and focal length of the lens. But add these three choices together and then throw in all that can be done in post processing and photography becomes much more than just a few choices.

You're not quibbling with me... you're agreeing with me. That's the point I'm making. Yes, there are lots of choices. Same with what Prince did. He had plenty of choices as well.

The point in brining up the "few minor choices" is to point out that people who think that other works are not art, but do think photography is art are being hypocritical.
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ChurchHatesTucker (profile), 29 Mar 2011 @ 11:59am

Re: Re: Re: Re:
That rasta should assert his publicity rights.

I'll set up a Rasta Image Association of America to administer those payments. Photographers like Cariou will pay me to clear the rights, and I'll distribute it to registered rastas (with a modest overhead cut, of course.)
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Anonymous Coward, 29 Mar 2011 @ 12:00pm

Think back to middle school art class.....

Our teacher had us choose a famous painting and we were to recreate that painting, only using a single main color, but we were given access to white and black to make different 'shades' of the single main color.

Is that copy, or art?
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Mike Masnick (profile), 29 Mar 2011 @ 12:01pm

Re:
I feel the need to complain when the "new" work is garbage. Like when rap/hip-hop "artists", or rather their producers, basically create a "new" song using most of an old classic song (which is almost always better than the "new" work) and then topped off with money/cars/drugs/hos lyrics.

So the final determinant of what is and what is not art is your subjective tastes? Fascinating.

The popularity of the "new" work is irrelevant and does not justify its existence.

Doesn't that popularity suggest that lots and lots of other people who also believe they are able to determine what is and what is not "garbage" disagree with you? And why are you more correct than they are?
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Marcus Carab (profile), 29 Mar 2011 @ 12:45pm

Re: Re: Re: Re: Re:
Yes! I was just thinking "you know what would solve this debate once and for all? more middlemen"

;)
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Kaden (profile), 29 Mar 2011 @ 12:47pm

Re: Re: Re:
Dude, you'd better get off his lawn...
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Huph, 29 Mar 2011 @ 12:56pm

Re:
Well, being a not-for-profit exercise in education, it is expressly protected by Fair Use.
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Iori Branford, 29 Mar 2011 @ 12:57pm

Slightly more important question(s)
How does even the most lazy and pointless throwing-together of others' work merit an official pillaging in court? How is that in the same ballpark as snatching the pieces right out of their studios? Why is it not good enough to give it a 1-star review calling it uninspired, derivative crap? What essential remedy for this situation exists that the courts and only the courts can provide?
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Not an Electronic Rodent (profile), 29 Mar 2011 @ 1:04pm

Re:
Anytime a "new work" uses a bunch of someone else's work, try this:

Remove the "borrowed" parts of the new work.

Then look at what you have left.

Interesting thought idea. So what granularity to you apply? Take music; how many chord combinations? How many songs consist of a few bars "stolen" from various sources? How many lyrics (lines, 1/2 lines, key prhases), borrowed from other songs, poetry, literature? If the granularity is words I'm pretty sure most of them have been used before (though to be fair I can't remember the use of "floccinaucinihilipilification" in any song.. perhaps there's an opportunity there?).

Point is, unless you set the granularity at "most of the song", then the aswer to your implied question applied to music is "not a lot" for any case. In the case of "art" like Prince, *shrug* would it have made a difference if he'd taken the extra 10 minutes to re-shoot a similar photo of his own in the same pose, and perhaps pasted the original guy's body over it too? If so, why's that different?
Where's the line? Who gets to say what the magic number of "sameness" is? Who gets to say what ganularity constitutes a "copied element"? I think Prince's picture sucks too, but that doesn't necessarily mean it's not art or as "original" as anything else.
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Nanker Phelge, 29 Mar 2011 @ 1:05pm

You left something out . . .
>>>Led Zeppelin is famous for nearly every famous song they had being a near direct copy from someone else.

First, this is an exaggeration: Some of their early songs contained lyrics and riffs from blues tunes. Second, and more important, in at least one case, they settled with Willie Dixon over taking lyrics to Dixon's "You Need Love" for their "Whole Lotta Love."

One could certainly argue about whether Zeppelin should have settled, or even been sued in the first place. But making it seem as though Zeppelin "borrowed" so much legally is sloppy, if not deceptive.
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Huph, 29 Mar 2011 @ 1:07pm

Art /vs. Infringent
I think what's getting lost in this debate over the last few days is the notion that just because something is art does not exempt it from the law. Likewise, just because something is ruled infringent doesn't mean it's not art. It only means that whatever is being discussed is infringent.

I am an artist, but I don't think that anything in the name of art is right. My craft being "illegal" doesn't stop me from creating anything because legal acceptance is not an incentive to create for me. In the same vein, threat of legal recourse doesn't serve as a disincentive, either (In fact, it being illegal gives me a little thrill and encourages me). When some of my work came under fire for its infringent nature, and I have been the recipient of C&D letters, I removed it from "the public" and moved on. While art may have a place in sparking new thoughts and ideas that might affect policy change, I don't think that laws should be written specifically to accommodate artforms. It's not an artist's place to dictate legal policy. I think it's nonsense, and artistically dubious to request policy change to alleviate my personal responsibility to the artists that came before me. That's for legal scholars and lawyers; I have art to make.

By the same token of asking whether judges should be allowed to dictate what is art, you must ask, "Should artists be allowed to dictate what's legal?"

The idea of appropriation reaches far beyond the realm of the arts. We shouldn't only consider a particular law in the vacuum of its effect on art. And a small--though quite lucrative--corner of the art world at that.

P.S. However, requiring the destruction of the works is incredibly awful. Almost unforgivably so. I hope the plaintiff and defendant can figure out a more beneficial arrangement. Hell, just pay the original photographer, surely the art is more important than the money?
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Anonymous Coward, 29 Mar 2011 @ 1:26pm

Re: Re: Re: Re: Re:
What if the band recorded their performance of a cover? What if they were so close to the original performance's recording that they were almost 100% identical? Would that be copying? Also it is very subjective to say that the artist didn't add enough or barely anything to the original work. If he had just published the same image without adding or removing *anything* that would be different.
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AWA, 29 Mar 2011 @ 2:14pm

Appropriation Photography
This discussion reminds me of Sherrie Levine's series of works titled "After Walker Evans" in which she took photographs of Evans' photographs and presented them unaltered in any way such that her photos looked exactly like Evans'. This strikes me as an elegant--and artful--commentary on the appropriative nature of photography itself. The works are "mere copies," but say a heckuva lot.
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KeillRandor (profile), 29 Mar 2011 @ 2:21pm

Art...
The problem with art, is similar to many other similar words - such as game, puzzle, competition, and even work and play (as nouns) - in that people constantly, (and consistently), get confused between what a word represents - its DEFINITION - and how such a thing is applied - its APPLICATION.

This is the problem here - since we're talking about trying to judge a definition by how it is applied, which, by its very nature is PURELY subjective!

It is therefore up to an individual to apply such a definition by themselves, and not be dictated to by anyone else. I'm sure that if society didn't agree with any individuals opinion then they'd have ways and means of making it known without having to involve the law, which can't AFFORD to be so subjective!

The ONLY objective standard is a pure copy of any work of art - and so that is all the law itself can defend - (but even then, it may not be in societies interests to do so) - anything else and society as a whole is then being dictated to by someone else's standards - at which point, society will ignore it and just work round it anyway, as it always does - which is what's happening.
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KeillRandor (profile), 29 Mar 2011 @ 2:23pm

Re: Art...
Doh - forgot to say:

Although my blog doesn't cover art (yet), I still suggest you read it to understand some of the other foundations of this problem (apart from greed) - (Click my name).
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The eejit (profile), 29 Mar 2011 @ 2:27pm

Re: Re: Re: Re: Re:
Go ask Valve how their Counterstrike mod is going.
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Marcus Carab (profile), 29 Mar 2011 @ 3:24pm

Re: Re: Re:
Good point. Demand is much better. I definitely didn't mean art needs widespread popularity to count as art.
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Kaden (profile), 29 Mar 2011 @ 3:57pm

Re: Not Comparible
Gonna need to show your research on that one, sparky. I'd also like to know the criteria your 20% difference would be based on.

Also: Music is actually art.
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Jay (profile), 29 Mar 2011 @ 4:05pm

Valve
Since I'm a Valve fanboy I thought to get a few posts regarding a game that has a lot of history that people will fail to notice at first.

I bring you, Team Fortress 2

A little background, it was a game that was 9 years in the making. The fact remains that it was considered vaporware for the longest, possibly only Duke Nukem beating it out for the title. It started as a military shooter akin to now Call of Duty or Battlefield. However, the creators decided to take a few turns and make a more comedic game that couldn't be taken all too seriously. They upped the fun, downplayed the seriousness and it paid off.

To bring the mood back, the creators decided to base their artwork off of 1930s impressionistic art to make a rather unique interpretation. Link

Team Fortress 2 incorporates the nationalism, the industrial and farmland themes, and the efficiency of Precisionist work within its architecture.

Going even further, you can look at the artwork of JC Leyendecker and see the use of warm to cool shifts to result in cooler colors instead of rich blacks. Link

Yes, Norman Rockwell was a great inspiration but it was Leyendecker's style that helped with the characters and helping to differentiate them for easy references in a game.

What is very interesting, is the story of TF2, which is very unique. What people don't seem to understand is that the entire story is told outside of the game, but helps to influence it inside.

I will strongly recommend looking at all three videos linked. Like VirtuallyReality says in the last piece:

"Narrative doesn't have to be deep to be meaningful, and a game doesn't have to be serious to be cultural"

Perhaps, the same can be said of art.
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MackAdelic, 29 Mar 2011 @ 6:59pm

Dear Mr. Masnick, your statement (below) regarding the music of Led Zeppelin is almost entirely false. It is mis-leading at best. As a writer you should always stick with what you know. i.e.- The facts. Please supply facts that support your statements.
With the exception of the now famous omission of Willie Dixon's song writing credit for "Bring it on Home" and the total, re-working of Jake Holmes "Dazed and Confused" (Led Zeppelin holding an entirely different copyright for that song), I fail to see, hear or understand where all the "MINOR CHANGES" and or "COPYING" was done by members of Led Zeppelin. With the exception of the two songs previously mentioned, I challenge you to come up with a Led Zeppelin song that SOUNDS even REMOTELY like that of ANY other artists, past or present. Thank You.
Kind Regards,
Mack McCarthy - LedHed since December 1968
Portland, Oregon
U.S.A.

http://en.wikipedia.org/wiki/Bring_It_On_Home_(Sonny_Boy_Williamson_II_song) http://en.wikipedia.org/wiki/Dazed_and_Confused_(song)

"Led Zeppelin is famous for nearly every famous song they had being a near direct copy from someone else". "The changes made were minor, but created massive successes -- showing that people seemed to really like these "copies," even if there was very little new in them".
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Kaden (profile), 29 Mar 2011 @ 7:10pm

Re:
Without even trying: http://www.listropolis.com/2008/06/led-zeppelin-innovators-or-plagiarists-audio-of-8-songs-proving-t hey-might-be-the-best-cover-band-of-all-time/

Sorry Mack... You lose.

Is there a prize?
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darryl, 29 Mar 2011 @ 8:33pm

Led Zepp ??
you are a moron Mike, tell us what Led Zepp songs are you referring to that are copies of other songs ???

Name 5 and the 5 songs they were copied off..

OR STFU, as you clearly DO NOT HAVE A FREAKING CLUE...
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mirradric, 29 Mar 2011 @ 9:02pm

Re: Re: Re: Re:Quake or Unreal
I was under the impression that gold source was derived from the Quake engine.
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Jay (profile), 29 Mar 2011 @ 9:21pm

Re: Led Zepp ??
Kaden is right above you. He posted one hour ahead of you, and you still ignore him to attack Mike...

I love it when ACs fail to comprehend the significance of other people's posts...

*shakes head sadly*
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Brendan (profile), 29 Mar 2011 @ 11:34pm

Re: Led Zepp ??
o_� ----( I R DARRYL )
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Lawrence D'Oliveiro, 30 Mar 2011 @ 3:17am

Was Malcolm McLaren A Rip-Off Artist?
Just been revisiting some of his classic work on YouTube.
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Brian Schroth (profile), 30 Mar 2011 @ 10:44am

Re:
Didn't I already respond to your ridiculous "COW" argument?

http://www.techdirt.com/articles/20110328/02282913648/do-we-really-want-judges-determin ing-what-art-says.shtml#c293
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vivaelamor (profile), 30 Mar 2011 @ 11:18am

Re: Re: Re: Re: Re:
"No, don't be dense."

What are you referring to? You don't appear to have refuted my quoted statement. In fact, you seem to be explaining why you don't believe Prince's work is art.

"Actually, royalties are the way of paying for ceded control"

From Wikipedia (emphasis mine): "Since the Copyright Act of 1909, in the United States there has been a right to record a version of someone else's tune, whether of music alone or of music and lyrics.[6] A license can be specifically negotiated between representatives of the interpreting artist and the copyright holder, or recording of published tunes can fall under a mechanical license whereby the recording artist pays a standard royalty to the original author/copyright holder through an organization such as the Harry Fox Agency, and is safe under copyright law even if they do not have any permission from the original author."

Maybe if the artist was alive in 1909 then you might argue that they ceded control.

"Mike is trying to compare to music, but the comparison isn't fair because there is a performance component that isn't present in copying photographs"

If there is a performance component to taking a photograph then there is a comparable component to sticking a Hitler moustache on a photograph. Both are taking what is already there and making choices about how to present them. Arguably, taking a photograph doesn't even add anything to the subject of the photograph, it is reliant solely on composition of the shot for expression.

"10 musicians can play the same song, and each one is a unique performance"

10 artists can stick things on a photograph, and each one is a unique performance.

"Plus each of Mike's examples are music which is substantially different in performance than the originals cited, with much added, removed, and changed in composition and performance."

But that isn't a requirement, is it? A musician can choose to recreate another performance of a song to the best accuracy of their ability.

'But even to an untrained eye, you can see that his "work" is mostly a copy of the other work, with no variation in presentation or performance.'

Unless you count the performance of sticking bits on, which vary the presentation somewhat.

"It isn't trans formative"

Except where it is.

"it isn't a personal interpretation"

Except that it is.

"it is a copy"

Except where it isn't.
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