Copying Is Not Creativity! Why Creative Artists Don’t Need the Public Domain

Stephen Carlisle February 27, 2015

Along with all the other nonsense being thrown about when copyright is mentioned, the most puzzling is the notion that somehow creative artists need for things to go into the public domain as quickly as possible, or else we cannot create. Somehow in their minds, copying is equivalent to creativity. I will be polite here, because many of the people saying this are very intelligent, including as we shall see, a Federal Circuit Judge. My only thought is that either they have not thought this notion through, because it sounds reasonable in the abstract, or because they have never been responsible for a creative work of their own.

The argument goes something along these lines:

“Creativity is impossible without a rich public domain. Nothing today, likely nothing since we tamed fire is genuinely new: Culture, like science and technology grows by accretion, each new creator building on the works of those who came before. Overprotection stifles the very creative forces it’s supposed to nurture.” ¹

To which I say: nonsense. First off, can we dispense with the notion that “[n]othing today, likely nothing since we tamed fire is genuinely new.” Really? When we tamed fire, the following had yet to be invented: the violin, viola, cello, bassoon, oboe, trumpet, trombone, saxophone, flute, harp, guitar, organ or synthesizer. The following people would not be born for thousands of years: Bach, Beethoven, Brahms, Mozart, Debussey, Wagner, Ravel, Stravinsky or any of the Beatles. At this point, we still will lack for thousands of more years: Da Vinci, Michelangelo, Rembrandt, Titian, Degas, Van Gogh, Monet, Toulouse-Latrec, Picasso and Dali. And let’s not forget eons would go by before the likes of Chaucer, Dickens, Melville, Dumas, Dostoyevsky, Twain, Poe, Steinbeck, or Ian Fleming would become known to us. And finally, neither the camera, nor the motion picture camera, was even a glimmer in the mind of tamer of fire.

Now, since when did copying become creativity? True creative people create. True creative people do not just copy slavishly from others. That is why they are remembered hundreds of years after their death. Artists may be indeed be influenced by other artists, and this connection may be apparent in their work, but this is not the same thing as simply copying. Copying is not creativity. Copying is copying.

Aha! You may be thinking, didn’t Stravinsky say “good composers borrow, great composers steal”? Actually, he never said this. ² Plus it is worth noting that this same quote has also been attributed to Picasso, who didn’t say it either. ³ The actual quote has been traced back to T.S. Elliot, who made this point:

“Immature poets imitate; mature poets steal; bad poets deface what they take, and good poets make it into something better, or at least something different.” ⁴

Not quite the same sentiment is it? Seeing a good idea, poorly executed, and making it into something better is not copyright infringement, because copyright does not protect ideas.

Previous blog posts have detailed the great level of ideas, themes and settings that can be adopted from previously existing works without committing copyright infringement. ⁵ And a more recent blog post detailed what parts of a musical composition are, and are not, copyrightable. ⁶ In preparing this blog post, I read a lot of posts from musicians and music educators saying this composer stole this from that composer, all without analyzing what evidence there was of direct copying (and ignoring the doctrine of independent creation) whether what was taken would have been protectable under modern copyright law at all. In short, there seems to be a cottage industry of accusing famous composers and writers of plagiarism, where nothing is put forward as evidence other than the works have similarities.

Take for example, noted film composer John Williams, who seems to get accused of plagiarism a lot on the web. All composers have musical influences, and Williams is no exception; I hear a lot in his work that could have come from the pen of Beethoven, Wagner or Holst. Indeed, listen to Holst’s “Mars: The Bringer of War” from the orchestral song suite “The Planets” and it is hard not to be reminded of the score for Star Wars. It is one thing to imitate, consciously or unconsciously another composer’s style of writing, arranging and orchestration. It is quite another to openly plagiarize to the level of copyright infringement. Are there similarities between “Mars” and Star Wars? Absolutely. Are the two works substantially similar to the level of copyright infringement? Not even close. And note, Holst died in 1934, ⁷ which means in those Berne countries which adhere to the life plus fifty copyright term, “The Planets” would have still been protected by copyright in much of the world in 1977, when Stars Wars premiered. To the best of my knowledge, no action was ever taken.

As a more modern example, there is Phil Collins’ “Sussudio,” which Collins has admitted drew inspiration from Prince’s “1999.” ⁸ They share a similar pounding mid-tempo beat, and that the underpinning of the song is a sequence of block chords played on a synthesizer. Otherwise, musically and lyrically, the songs are nothing alike. ⁹ Certainly, Collins was not sitting around moping that he wished Prince’s song would hurry up and go into the public domain so he could copy it. And certainly Prince, who is ultra-protective of his work, was not sufficiently aggrieved that he had been done wrong to do anything about it.

We as creative people do not need to move works into the public domain as quickly as possible. We can legitimately draw ideas and inspirations from other works, and build on them, without moving into the realm of copyright infringement. The restrictions of copyright do this rather well. You are allowed to copy all sorts of things from other creative works, but not make a slavish copy which adds nothing to our culture. As matter of fact, creative restrictions are your friend, not your enemy.

Back in music school, in composition class, I was tasked with writing a piece using counterpoint. One of the rules in counterpoint is that you could not have two notes moving in the same direction at the same time separated by either a perfect 5^th or an octave, known as the rule against “parallel 5ths and parallel octaves.” Why is there such a rule? They destroy the contrary motion required by counterpoint and sound bad. Yet, many times I found I had written myself into a trap, where parallel 5^th or octaves were unavoidable based upon the chord sequence I was following. This would lead to much cursing on my part as several bars of music would have to be erased, and I would have to find a solution to the problem. In other words, the restriction demanded that I get more creative.

And currently there is the example of the movie Selma, about events in the life of Martin Luther King, Jr. Incredible as it may seem, the movie did not use King’s famous “I Have a Dream” speech nor any other speech made by King. Why? The King family had registered all of the speeches for copyright, and sold the rights to Steven Spielberg. ¹⁰ So, faced with this restriction, what did the filmmakers do? They got creative.

“Because King’s speeches were licensed to another project, Selma’s filmmakers had to find a way to re-create the meaning of MLK’s words without tres­passing on his actual, historic language. That means they had to rewrite MLK, though sometimes this meant just altering a verb or two. During the scene at the funeral of civil rights demonstrator Jimmie Lee Jackson, for instance, the MLK in the film gives a rousing oratory, asking the crowd, “Who murdered Jimmie Lee Jackson?” In real life, King asked, “Who killed him?” In another scene, King rallies protestors with the words, “Give us the vote,” while in reality King said, “Give us the ballot.” The film skirts close to the words without using them.” ¹¹

“Once they realized how complicated the family situation was, the producers never even attempted to clinch a deal with the King heirs. ‘There were no negotiations,’ says Sophie Glover, head of publicity for Pathe’ UK, which co-financed the picture. “The film does not use any copyrighted material.’” ¹²

The goal of copyright is to “promote the progress of… useful arts.” ¹³ It does this in two ways. The first is to provide a monetary return to the author sufficient to incentivize the creation of the work. The second is that copyright allows for some copying of ideas, and even some expression, but prohibits slavish copying that does nothing to create new works of value that enhance our culture. This is the second part that never gets mentioned by anti-copyright critics. The restriction against slavish copying through the grant of a copyright means you have to get creative and work up something fresh. You are not allowed to just repeat what someone else has come up with. This has no value and does not promote the progress of the useful arts.

For example, the anti-copyright forces laud the re-mixer as making some grand artistic statement that we should promote, forcing copyright owners into blanket licenses. To which my response is “what are they creating?” If you as a re-mixer, wish to use my song, you want it for two reasons; first, it’s a good song or it’s a popular song, perhaps both. Neither of these values were created by you, the re-mixer, they were created by me, the composer. So in essence the re-mixer wishes to take advantage of the value of a song without being the cause of the creation of that value in the first place. Put more succinctly, the re-mixer seeks to reap where they have not sown, which is why we have laws against common law misappropriation, as well as laws protecting copyrights. So my permission to lend my valuable property to your project should absolutely be required. Don’t like that you need to get my permission? Then go write your own song. Get creative.

No one has a copyright on a style. No one has a copyright on music theory. No one has a copyright on compositional techniques or methods. Creating a piece of music clearly inspired by another composer is not copyright infringement, unless and until it rises to the level of being substantially similar. This is the argument being played out in the “Blurred Lines” case, the subject of a previous blog post. ¹⁴

And remember, creative restrictions are good for you. They force you to go beyond merely copying what has gone before and actually get involved in creating something.

Copying is not creativity. Copying is copying.

We don’t need bad copies of what Mozart did. We need the next Mozart to start writing.