Because this means I can't really point you to the best pieces of writing on intellectual property to pass in front of my eyes this month. Both appear in the print edition of Harper's Magazine, February 2007 edition. If you can still buy this issue, do it.
Inside you'll find two articles I can't possibly do justice to in a blog posting. Both are brilliant examinations of intellectual property, use/reuse, and repurposing of creative content. Both come from perspectives we don't hear often enough - the creators and users of the material.
The first piece is called "On the Rights of Molotov Man: Appropriation and the art of context" by Joy Garnett and Susan Meiselas. This item centers on a particular image - a Sandinista revolutionary preparing to throw a molotov cocktail. You can see a copy of the image on Harold Pinter's Web site.
In discussing the image Joy Garnett describes how she paints from photographs, and how her painting from this photograph went on to be used. The painting from the photo appeared in an exhibition, questions were raised about the appropriateness of use, letters from lawyers were sent, license fees were demanded, and the story hit the blogs. Garnett gives her perspective and raises questions on the issues of control around what was essentially a news or documentary photograph. Nobody "posed" for that picture - it captured a true event as real people went about overthrowing a dictator.
Then follows a response from Meiselas. She gives history and context for the photograph, shows how it became an emblem for the Sandinistas and was appropriated by them for political purposes, and finally introduces us to the actual person in the picture, whom she tracked down many years after the original photograph.
This pairing of creative views on use and appropriation is brief and poignant. I found myself sympathizing with both artists and with the notion that creative control means something as well as freedom to (re)interpret creatively.
Harper's then follows up with a stunning piece by author Jonathan Lethem called "The Ecstasy of Influence." The piece is subtitled "a plagiarism" in much the way that some things are subtitled "a novel" or similar self-descriptives. Lethem's essay is long and wide-ranging, covering many arguments that will be familiar to Copyfight readers. He touches on appropriation, literary theory, influence, and has no lack of harsh words for Disney and their attempts to create a one-way gated cultural community in which they take popular common stories and create perpetually locked content that cannot then be reused by anyone else.
Lethem's thesis is that every act of creation is actually an act of appropriation - it's just that some appropriations are more explicit than others. Even in the non-explicit cases, Lethem argues, nobody creates in a vacuum. We create out of cultural traditions and within genres that bring strong influences, whether it's science fiction novels or country music. Attempts to draw bright lines and say that one side of the line is "original creation" and the other side is "impermissible copying" are doomed and wrong from the outset. Lethem argues that modern copyright law is distorting the purpose under which the Constitution sets out the rights. In particular, copyright is supposed to exist in the US to promote useful progress. The Constitution says nothing about guaranteeing income or compensation for effort. Copyright, for a limited term, to promote progress - a general social good. Nothing to do with individual welfare, providing for authors' children unto the Nth generation, or any of that.
Lethem takes particular delight in cases where appropriation transcends traditional boundaries - he gives the example of receiving a copy of his own novel Gun, with Occasional Music that had been cut into the shape of an actual gun by a modern artist. Lethem is erudite and wide-thinking and persuasive, if somewhat scattered and not extremely coherent.
Or is he? Remember that bit about "a plagiarism?" After you've finished reading the essay, Lethem lifts the curtain and lets you see the gearing underneath. Almost all of the essay is plagiarized - copied from other sources. Lethem dissects his own collage for us, giving precise boundaries and explicit sourcing for each piece of the pastiche.
Finally, he goes meta and gives a quick overview of the notion of a collage text, of which this essay is an example. It's brilliant (can I say that enough times?) and eye-opening. In a way it's a radical view, to reject entirely the notion of original creation. In another way, it's a well-explored literary theory that has been known in academic circles for decades but that has not penetrated the Copyfight discussion in any significant way.
Go get the magazine. Really. Dead trees or not.
(EDIT: Readers have kindly given me a couple links to share. First, a pointer to the Lethem plagiarism, at Harper's itself. Second, a pointer to the NYU conference from which these pieces were drawn.)