Borrowing, appropriating and stealing as old as art itself

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Date: Mar. 20, 2015
Publisher: The Washington Post
Document Type: Article
Length: 1,430 words
Content Level: (Level 4)
Lexile Measure: 1240L

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Blurred lines indeed. The recent verdict by a federal jury in Los Angeles may have settled one case, but it has ignited a larger debate about creativity and ownership and how to sort out the co-opted from the copied.

After a jury determined Robin Thicke and Pharrell Williams copied parts of Marvin Gaye's "Got to Give It Up" in their hit "Blurred Lines" - and awarded Gaye's family $7.4 million - the music industry erupted criticism, praise and predictions of the death of the Pop Music or the resurrection of Originality.

The over-excited reaction may have been the result of the superstar adversaries, or the multimillion-dollar award, but more likely, it is because the jury's decision goes against the grain. Although artists borrow, sample and appropriate frequently, the answer to the question "Did they steal?" is usually no.

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- Appropriation in art

There's no history of art without borrowing, appropriation and in some cases theft. Certainly the past century is inconceivable without found objects - a urinal signed by Duchamp, a bicycle seat and handlebars turned into an animal head by Picasso, almost everything Jeff Koons has ever done. The 20th century began with collages made with images torn from newspapers and was dominated by Pop art, which meticulously reproduced the products of advertising and commercial design. Long eons of art have been devoted to small variations on familiar and beloved formulas, so familiar we have named them: the annunciation, deposition, sacred conversation, assumption. The Romans copied the Greeks, and thank goodness they did; much of what happened in the age of Socrates, Plato and Menander is known to us only through Roman facsimiles.

But there's also been a history of forgery, especially as art became a valuable commodity in the 19th century. Forgers have even laid claim to legitimate status for their work, and appealed to the same arguments circling in conceptual art circles for justification. If Elaine Sturtevant, who was recently the subject of a retrospective at the Museum of Modern Art, can make near perfect copies of Pop art, and call it new, why should forgery be seen as illegitimate?

There are no perfect, lawyerly answers to this. But general rules apply: The artist must add something - an idea, a nuance, a criticism - to the work he or she appropriates; it mustn't be done simply to deceive; and no one should prosper by borrowing if it comes at the expense of another artist. Shepherd Fairey based his famous Obama "Hope" poster on an image by an Associated Press photographer and then claimed he didn't and destroyed evidence; the law got involved and Fairey ended up with two years of probation, community service and a $25,000 fine.

That case comes close to some of the complexities of plagiarism in the pop music biz: Fairey's poster was clearly a superficial repackaging of an existing image, and he tried to hide his debt to the original. But this was on the margins of the more laissez-faire art world, where it's in bad taste to get too worked up about appropriation. Because without it, there's almost no art to talk about.

- Philip Kennicott

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- Transformative in fiction

Authors have been writing stories involving other authors' characters for centuries. Both Chaucer and Shakespeare, for instance, borrowed from earlier tales to create their own masterpieces. But the Internet supercharged such borrowing and reworking like never before. "Star Trek" fans who had once traded their own photocopied stories about Spock and Captain Kirk were suddenly joined by thousands of people posting "fan fiction" or "fanfict" about all kinds of well-known characters, from Harry Potter to Sherlock Holmes.

A notable segment of this material is sexually explicit in ways the original authors never were. (In a subset called slash fiction, Kirk and Spock boldly go where no one had seen them go on TV.) In fact - holy cow! - one of the most successful novels of our age, E.L. James's "Fifty Shades of Grey," began as fanfict based on Stephenie Meyer's "Twilight" characters Bella and Edward. James later changed their names to Anastasia and Christian and made other revisions as her series evolved.

Legally, fanfict hovers in at least 50 shades of gray. When challenged, some authors say, "Laters, baby," and simply take their stories down. But others have successfully claimed that their works are sufficiently transformative to be allowable under the fair use doctrine of U.S. copyright law. Those complex legal arguments involve more knots than you'll find in Christian's Red Room of Pain.

- Ron Charles

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- Unenforceable in comedy

"We live in a world where John Lennon was murdered, yet Barry Manilow continues to put out f---ing albums." - Bill Hicks

"We live in a country where John Lennon takes six bullets in the chest. ... Bring me the head of Barry Manilow, all right? I wanna drink beer out of his empty head!" - Denis Leary.

What do Robin Williams, Milton Berle, and Denis Leary have in common? They've all been accused of the highest crime of comedy: Joke theft. So why aren't punch lines being delivered in front of a jury? Two reasons.

Technically, copyright law protects exact wording, not an idea. So Seinfeld's airplane routine might have come first. But unless the next comic to rant about the bag of peanuts delivers the bit exactly as Jerry did, he's probably OK. Beyond that, comic kleptos are protected by a more important reality. Lawyers are expensive. Jokes don't pay much. And the angry comic always has a better option. Go public and shame the joke thief.

- Geoff Edgers

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- The art of homage in classical music

"Good artists borrow," Igor Stravinsky is supposed to have said, "great ones steal." (Or did he crib that line from someone else?) Call it borrowing or lifting, direct quotation has been a staple of the composer's arsenal since the dawn of Western music. Verdi obviously had heard Rossini's "Otello" a time or two before writing the Willow Song in his own; Leoncavallo meant it as an homage to Verdi when he quoted a line of "Rigoletto" at the end of the prologue in "Pagliacci."

Sometimes such "borrowings" are to make a point, as when Shostakovich took a line from Lehar's "The Merry Widow" (Hitler's favorite operetta) and included it in the banal, repeated, obsessive, earworm tune that he repeated over and over and over to denote the incoming German forces in his Seventh Symphony. Bartok heard this on the radio, found it trite, and cited the passage mockingly in his own "Concerto for Orchestra." Or was he mocking Lehar, rather than Shostakovich? Certainly classical composers expected such citations to be recognized. The story goes that when someone asked Brahms about the obvious parallels between the final movement of his First Symphony and the "Ode to Joy" theme in Beethoven's Ninth, Brahms responded, "Any ass can hear that!" And he never had to pay damages.

- Anne Midgette

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- Adaptation in theater

Aaron Posner's "Stupid F---ing Bird," which is currently being produced around the country - that's just Anton Chekhov's "The Seagull," right? And isn't Posner's "Life Sucks" Chekhov's "Uncle Vanya"? Yes: The characters, the plot, the angst and humor are mainly the same. And no: the language is slangy and now, and license is freely claimed to recast Chekhov's questions in a modern terms.

Posner doesn't hide what he's doing, but the key is that Chekhov has been dead for a century and his plays are in the public domain. Different angle: Bruce Norris's 2011 Pulitzer-winning "Clybourne Park" didn't steal from Lorraine Hansberry's 1959 "A Raisin in the Sun" (which is still copyrighted) because "Clybourne" merely started with that drama's situation then created a whole new play moving years into the future and grappling with a new plot and circumstances; so did Kwame Kwei-Armah's 2013 "Raisin" sequel and "Clybourne" reply "Beneatha's Place."

A quick check with the Dramatists Guild in New York confirms that the magpie culture of borrowing and re-appropriation that drives current pop music is largely alien to playwrights, even when one work is in creative conversation with another. Unlike Hollywood screenwriters who get paid but lose copyright control to the studios, playwrights - usually poorly paid - at least retain copyright. If a playwright were to try a freewheeling, blurry-lined adaptation of, say, Tony Kushner's early 1990s "Angels in America" or Ntzoke Shange's 1975 "For Colored Girls Who Have Considered Suicide/When the Rainbow Is Enuf" without first licensing the rights, odds are pretty good that would be stealing.

- Nelson Pressley

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