“Genius is one percent inspiration and 99 percent perspiration” - Thomas Edison.

It’s one thing for artists to be inspired by the work of others. It’s quite another to simply borrow without permission or compensation, what someone else has worked hard to create.

Last week, Mike posted an article about Girl Talk – the stage name of Greg Gillis who performs musical mashups incorporating work from other artists. Mike’s post asked three questions:

1. Does Girl Talk’s work constitute theft of intellectual property?

2. Is it unethical for him to incorporate other artists’ work into his own?

3. Should he be sued for copyright infringement?

Mike’s opinion – NO to all three questions. I am not so sure, particularly since I think the first two questions are incomplete. Here is what I’d ask:

1. Does Girl Talk’s work constitute theft of intellectual property if permission of original artists was never obtained and the original artists are not compensated?

2. Is it unethical for Girl Talk to incorporate other artist’s work into his own without permission or compensation to those original artists?

3. Should Girl Talk be sued for copyright infringement?

In my opinion, the answer to the first two questions is YES. As for the third question – that’s for the original artists or their labels to decide. There is much unsettled law in this area and it’s not as clear-cut as it appears initially. But I would urge the owners of the original works (or their agents) to act if they find Girl Talk’s practice objectionable.

Girl Talk certainly has a very distinctive style and is willing to experiment, both musically and financially. After all, as we wrote in another post, Girl Talk followed Radiohead in offering a version of the pay-what-you want pricing model. But I question whether it’s proper for an artist to simply take from other artists’ work without permission and compensation.

In music, “sampling” involves the taking of a portion of a sound recording and reusing it in a new recording. One example: the guitar riffs from Foreigner’s “Hot Blooded” in Tone-Loc’s “Funky Cold Medina”

Let’s briefly look at two concepts in copyright law: derivative works and fair use. When a work is based on one or more preexisting works, it’s commonly known as a “derivative work”. U.S. Copyright law (and the laws of many countries) typically give the creators of original works a limited monopoly to create works based on or derived from the original works. This is done to encourage artists and authors to produce original works.

The second concept is called “fair use”. Fair use was intended to permit the use of parts of a creative work for criticism, commentary and reporting (these are the goals of U.S. copyright law – these goals might differ in other countries). Courts consider a number of factors in determining whether a use is “fair use”, but that’s a separate discussion. Fair use is not a universal doctrine.

When musicians sample a recording, they typically need to obtain the permission from the owner of the recording. Many musicians obtain prior permission (and pay up-front fees or royalties based on sales). There are a number of companies that act as sample clearance services and will help musicians obtain all rights involved with a sample.

Many musicians comply with copyright rules. Even younger bands – such as The Dufrenes, who will release their first album in the fall – make sure that when they sample other people’s work, they obtain a license (and pay the required royalties).

I respectfully disagree with Mike that it would be proper for a graphic designer to incorporate an image someone else created into a larger piece, presumably without permission or compensation. Perhaps Rodin’s the thinker is a poor example given its rather dated history, but take any contemporary image and I think most creatives would find such incorporation to be inappropriate. I could certainly invoke a feeling or make a statement if I create a new company selling computers with a combination of logo elements from some of the top computer companies (such as Apple, DELL, etc.). But I hardly think that would be proper and I bet Apple, DELL and their legal counsel will have something to say if I did that.

What do you think? How do you answer the three questions?