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Wherefore Thou Art #7
Infringement

“Mediocre artists borrow; great artists steal” -- Picasso (or Stravinsky, depending on whom you ask.)
“I take a song I like and change it some. That’s how I write songs” -- Iggy Pop

All art borrows from the art before it. Any artist claiming to be truly original is either delusional or consumed in his own hype. Given this fact of life, how can there be such a thing as infringement?

Saying you’ve been infringed is a fancy way of saying you’ve been ripped-off. Copyright infringement happens when somebody violates one of the exclusive rights the law gives to a copyright holder. If someone duplicates or publishes your work without permission, they are infringing. If someone creates a version of you work, (i.e., makes a movie based on your book), they are infringing. And of course, if somebody copies your work and calls it macaroni (their macaroni), they are infringing.

Obviously there is some tension between the ideas of artistic influence and copyright infringement. And there is a big stinky gray area where the two collide. But let’s begin at the beginning.

Infringement has two major elements: (1) exposure to the original work, and (2) copying the copyrightable elements of the original work. Both of these have to be shown in order for there to be copyright infringement.

Occasionally I’ll get a call from an artist who thinks she’s been infringed. Something has been spotted out there that is suspiciously similar to the artist’s original work. Maybe it’s infringement, maybe not. First, I explore the history of the artist’s work. How old is it? Where has it been? Who has seen it? Has it been publicly displayed, performed, or broadcast? Have copies been distributed? Have copies been submitted to a record company / publishing company / magazine? Has it been on the Internet?

I ask these questions because I’m trying to figure out the likelihood that the alleged infringer had access to the artist’s work. The less likely the work was seen, the less likely there was any infringement. And if it is impossible, or near impossible that the work was seen (and “someone must have broken into my house and looked at it” doesn’t cut it), there can’t have been any copying, so there’s no infringement no matter how similar the two works are. Unlike patent law, copyright protects personal creativity, and not uniqueness. If something is original to the creator, it is protected by copyright, even if the work is similar or even the same as someone else’s work. I won’t bore you with the room-full-of-monkeys-with-typewriters example. O.K., I will. One monkey types the Bible. Being a monkey and all, he’s never taken the time to read the Bible, and doesn’t even know about it. So the monkey’s Bible is original to the monkey, and the monkey can get a copyright registration for it (the King Cheetah Version, or something). Or could, if the Copyright Office gave registrations to monkeys. But don’t worry, the monkey can’t stop the world from quoting or making Bibles, he can only stop people from quoting of copying his version.

A lawsuit involving the Bee Gees illustrates the point about access to the original work. In the late 1970’s a Chicago songwriter claimed that “How Deep is Your Love” infringed his original song. He had a good case -- the songs were strikingly similar. But the songwriter had performed the song only a couple of times in little clubs near Chicago and claimed to have submitted a tape of the song to a couple of record companies. There was no suggestion or even a remote possibility that any of the Bee Gees had ever heard the song. At trial the jury found for the songwriter, but the judge overruled the jury and dismissed the case. Even though the songs were so close that copying appeared obvious, there was absolutely nothing to indicate that copying had, in fact, taken place. Given that the song was a huge hit, appeared in a big hit movie, and later in a hit (albeit awful) Broadway play, imagine what the damages would have been had the Bee Gees lost.

Singer Michael Bolton wasn’t so fortunate a few years ago. He was sued by the legendary soul group The Isley Brothers over Bolton’s song “Love is a Wonderful Thing.” In 1962 the Isleys had a minor hit in 1962 with a song of the same name. This alone wasn’t a problem (there were over 100 different songs entitled “Love is a Beautiful Thing” registered in various places). Bolton’s song, however, also had almost the same melody and internal structure as the Isleys’ song, which was a big problem. Bolton claimed to never have heard the Isleys’ song, and the Isleys had to prove otherwise. First they established that in 1962 Bolton was 16 years old, living in New Haven, a huge soul music fan, and a singer in a soul band. The Isleys established that Bolton listened to one particular R & B radio station in New Haven. Then they produced a disk jockey who had worked at that station in 1962! The DJ testified that in 1962 he played the Isleys’ song dozens of times. The inference, of course, was that Bolton must have heard the song on the radio. Then, to nail the coffin shut, the Isleys produced someone who had witnessed, some years before, a chance meeting between Bolton and Ron Isley, one of the Isley Brothers. Bolton reportedly gushed his admiration about the group, saying “I love you guys! I know every song you’ve ever done!” D’Oh! Case closed!

Besides access to the original work, the other element of copyright infringement is the copying of the copyrightable elements of the original work. This gets to the meat of the matter, raising questions like “how much copying is too much?” and “if I change the original so it looks (sounds, reads) different, is it OK?”

This is another area of copyright in which there are no hard and fast rules. There’s no “five note rule” or “three second rule” in music. No collage exception, no magic percentage of copying for visual arts. Once access and copying are established, infringement is found when a judge or jury determines that copyrightable elements were taken. The standard is often stated something like this: “If a reasonable person, seeing the two works side by side, thinks the newer work wrongfully took from the older, copyright infringement will lie.” Which is not particularly helpful.

Sometimes, determining what are copyrightable elements is difficult. This comes up often in screenplays when storylines, scenes, and character types are involved. Many times, these things are not copyrightable -- in a film, you can’t copyright a gun duel at high noon where the unshaven cantankerous law-man is protecting the virtue of a damsel (not to mention the safety and security of the town). If you were able to copyright that, no more Westerns would get made. At least no more good ones. What would be protectable, however, would be the particular dialogue in the scene, the precise look of the set, and the music played while all this stirring drama goes down.

You can go through the law books and find hundreds of infringement cases, which are interesting and fun to think about, but don’t provide consistent guidance for future situation. Ray Parker, Jr.’s Ghostbuster” infringed Huey Lewis’ Got a New Drug. (It didn’t help that the Ghostbusters people had previously tried to license Got a New Drug for the movie and Lewis declined). George Harrison’s My Sweet Lord infringed the Chiffons’ He’s So Fine. (The judge ruled that Harrison’s copying was subconscious, and virtually apologized for finding him liable, because he was such a nice young man. And a Beatle). Steven Spielberg’s movie Amistead probably infringed on Barbara Chase-Riboud’s book Echo of Lions (Spielberg settled, reportedly for mucho dinero , after the judge let it be known that he was leaning in Chase-Riboud’s favor). Granville Burgess’ play Dusky Sally infringed Barbara Chase-Riboud’s book Sally Hemmings (Ms. Chase-Riboud apparently doesn’t take crap from anybody!) Jeff Koons’ sculpture String of Puppies infringed Art Roger’s photograph Puppies. (Koon’s wooden sculpture, a slavish reproduction of a kitschy photograph, infringed the photograph. The sculpture was found not immune from liability because it purported to make a statement about kitschy things, the shallowness of American culture, man’s inhumanity to man, etc).

So these are the basics about infringement. Next month I’ll look at infringement in a little in more detail, looking especially at the border areas where the questions are much more difficult, and the answers much more fuzzy.

© 2003 Paul C. Rapp
This article originally appeared in The Artful Mind, and is intended to provide the reader with an awareness of copyright law and not legal advice.