1 Percent Inspiration, 99 Percent Perspiration Ross Kimbarovsky | August 11th, 2008

“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?

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  • fredK

    1. Yes.
    2. Don’t know. Does the music industry really have any ethics when it comes to this particular issue?
    3. It’s up to the labels’ legal department.

    Basically: using other people’s original stuff without credit or compensation of any kind = theft. I’m sure that there are nuances to the thing, like how original the originals are, and Girl Talk might be out to make a statement or can’t really afford to pay royalties or love the originals So Much the sampling just Had To Be Done. But in a strict sense I would have to disagree with Mike.
    Taking the works of others and calling it your own may almost be a hardwired component of the artist DNA these days (“everybody’s doing it…”) — but that doesn’t make it right. Imo.

  • DWNees

    Art is tricky business and such is the case with music, literature, etc. I think the issue is that we have to understand how, in the case of “Girl Talk,” what is being done here (again forgetting the idea of legality). In art it is ethical and appropriate to incorporate cultural symbols/images in order to make some type of commentary (positive or negative) about those symbols/images. This is widely done, Pop Artists both in America and Europe are famous for doing it – nobody declared copyright infringement against Warhol for his Campbell soup cans. Even more, the cases of copyright infringement and artistic license are becoming less straight-forward. Ask the people at Mattel about Aqua’s “Barbie Girl.” Mattel sued, Aqua won. That seems to be the case with “Girl Talk.” If it is using original material to say something about that material – then all is well in my book. The same is true for collage artists who will often take mass produced images and incorporate them into an original work – where their work is somehow about those images.

    Now the big question is, how do you determine that the artist/musician/etc. is making a cultural commentary? Which brings me to the contrast of this argument. In graphic design, you would be hard-pressed to find a designer who has used an element (such as Rodin’s Thinker) in order to comment about Rodin’s work. More is the case that they are using Rodin’s idea to support, one might say to illustrate, their own idea. The music equivalent would be a mixed tape – which though common, are actually illegal (at least in the US). In these instances, you have a designer, or mixed tape recorder, who is pilfering the creativity of another due to a possible lack of creativity of their own. This touches on what fredK said, but it is paramount to understand if the artist/musician/etc. is taking the work of others and calling it their own, or that their work is about those other works.

    David (DWNees)

    A caveat:
    *Please note, that, as I said in a previous forum post, that their is a vast difference in using visual elements (clip-art/ illustrations/stock, whether self-created or not) in design and using fine art in design. That is why the legality of the issue is not helpful in a debate such as this, because it may be perfectly legal as was discussed, but even then legality is not the only criteria by which to decide whether something is appropriate or not.


  • DWNees

    There is also a vast difference between “their” and “there.” Sorry for that….


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