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Originality and Copyright Theory

On Thursday, in my Copyright Law class, we pondered whether anything is truly “original” in art, be it music, film, literature, etc. We also batted around some alternative theories thrown into the mix by a couple of creative students. One student articulated a pretty cool hybrid theory whereby moral rights would extend perpetually, even if economic rights terminated at some rational point in time. Check this out.

Golddigger meets A Fifth of Beethoven.


Much like our current copyright scheme, this proposed theory would still leave the problem that works like this one could still be stifled by copyright owners the way that Abba stifled The KLF.

Of course, all Abba wanted was adequate royalties, and compulsory licensing could tweak the problem. (And fair use probably would have been an adequate defense had the matter gone to court). Nevertheless, are we promoting progress by throwing a weight around the ankle of creativity? Does the “original” artist truly deserve such a monopoly on later renditions and new works? Is Fair Use expansive enough to allow for more “originality” even when such “originality” is truly “copying?”

In our class discussion, the general consensus among my students as to whether anything is “truly original” was “no.” Even the highly original Repo Man, builds on prior works. Consider this line by Bud (Harry Dean Stanton)

I shall not cause harm to any vehicle nor the personal contents thereof, nor through inaction let that vehicle or the personal contents thereof come to harm. It’s what I call the Repo Code, kid. Don’t forget it–etch it in your brain. Not many people got a code to live by anymore.

If you don’t recognize it immediately, this is a modification of Asimov’s First Law of Robotics.

While Elvis Presley is iconic and a central figure in my personal religion, it is often correctly stated that he rarely (if ever) created anything “original.” Most of his most popular music was simply lifted from African American artists who, due to racism in the market, were unable to capitalize on their genius. Of course, they were not the only source of Elvis’ success.

Compare this:


With this:


Was Elvis really the next Caruso (or in this case Gigli)? Or was he just a precursor to Vanilla Ice? (At least Elvis acknowledged that “It’s Now or Never” was a derivative of O Sole Mio).

Consider this:




Curtis Mayfield didn’t just give us the foundation for Touch the Sky… compare these:



Again, set aside infringement notions and just think about the theories and the issue of originality.

(Hit “play” simultaneously on both videos. Turn off the sound for Soul Train, but watch the video for it).

Lets just presume, arguendo, that Curtis Mayfield didn’t want to give Kanye West permission to use “Move on Up.” Should we all be deprived of “Touch the Sky?” Worse than that, Curtis Mayfield probably doesn’t own the copyright to his music anymore – should his record label be permitted to decide that we could all do without Egg Man?

Maybe… but when thinking about these questions, consider the moral rights theory. Think about the incentive theory. Consider the plain language of the Copyright Clause.

Congress shall have the power … To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries. U.S. Const. Art. I § 8.

We might not listen to Ice Ice Baby and call it “progress,” but one man’s vulgarity is another man’s lyric. (Cohen v. California). Sure, Simon & Garfunkel were brilliant – but can you really say that the Lemonheads doing Mrs. Robinson is not “progress?”


Reel your minds back to the film medium. I once took a class on Italian Neo-Realist Cinema in which Jennifer Stone told us “the best films are about the history of film.” In other words, a lack of originality is, at least in Stone’s eyes, a desirable quality. Well, lets take it away from the berets and cappuccino crowd and be a little more pedestrian — The fun of Family Guy or South Park is the constant references, parodies, and homages.

Which brings us back to the implied question in Burrow-Giles Lithographic Co. v. Sarony. Is the “artist” truly creating something — or is the artist merely “taking a mirror for a walk?” Does it matter? Legally or theoretically, does “originality” even really exist? I’m not some “I never had a job academic” saying that there should be no copyright laws, but simply from a theoretical standpoint, copyright doesn’t seem to adequately contemplate how mentally and intertwined we all really are – how creativity and copying are not inconsistent. The compulsory license be damned, once a second “creator” has breathed his own life into a creation, do we adequately recognize that new life?

Listen to the mashup below and run it through the ideas above. How much “originality” is there in this? Does it really matter? An “original” (the David Bowie and Queen version) mashed up with the rip-off, actually creating a new life… just like the Golddigger meets A Fifth of Beethoven mashup. Should we, the public, be deprived of this by any “original” artist either by the artist wishing to control his/her moral rights, or by the simple economic forces that could come into play through royalties and licensing?


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