Appropriation or Copyright Theft?

I met Bill Horne as a result of my interest in CARFAC. Bill was head of the BC branch of CARFAC when we met and we have maintained a professional relationship for many years. He wrote to me to propose that I write a column about “the grey areas that may exist between plagiarism, collaboration and synchronicity, the latter being the coincidental appearance of similar imagery and material.”

Bill’s email contained anecdotal information from guest artists who have the impression that BC artists are more likely to reference or serendipitously create work similar to work by other artists than other Canadian artists do. Could this be true? If it is, could it be because we have a higher density of artists here in the west than anywhere else in Canada?

First of all, there are many more verbs that come to mind besides “plagiarism, collaboration and synchronicity” in contemplating the question and observations in Bill’s email. Here are some: appropriation, referencing, sampling, rendering, parodying, and stealing. There are other words: Mirroring, imitating, honouring, echoing, “after” and emulating; and there are concepts such as “in the school of….” and “in the style of….”

“Collaboration” seems different to me. When you collaborate, it seems to me, collaborators are responsible for tracking and negotiating their acknowledgements from the outset, but that ownership and all rights belong to the collective.

“Plagiarism” and “theft” are not synonyms of the non-judgmental words “referencing” and “sampling.” The neutral words describe legal action; the judgmental words describe conscious actions that violate acceptable social/legal codes. So, as artists, we want to stick to the neutral paths.

Bill acknowledges the phenomena of the collective subconscious and mathematical probability as a possible explanation for some similarities in creation such as, perhaps, the two images of the “bent pyramid” by David Burdeny and Sze Tsung Leong that recently made headlines. (http://blog.marklamster.com/?p=1775) This is what we call coincidence and the more we create and the more images we see in our life, the greater the possibility that we might subconsciously “copy” something or part of something in our work.

“Appropriating,” “referencing,” “sampling,” “characterizing” and the like—all these verbs describe a legal activity many artists undertake. But few artists understand where the line between these words and “theft” exists. A lot of artists think they know the law, but don’t. You don’t until you have studied case law as a lawyer does, because true meaning lies not in the law, not in the legislation, but in the interpretation of the law in case law.

Many artists do not understand the professional responsibilities that accrue when they undertake perfectly legal actions. Only those who understand the complexity of these legal terms should use them and undertake the actions they describe. If you are not clear about copyright law and you “appropriate” in any way, study up via the CARFAC Copyright Collective!

Besides coincidence and the ambiguity of understanding about the laws pertaining to so many artistic practices are other factors that could be contributing to a perception that artists in BC do a disproportionate amount of “referencing.” The home computer and this digital age we live in, and the popularization of the “creative commons” concept have furthered a decline of public—and particularly artist—understanding of, and respect for copyrights. So has media coverage of recent changes to American copyright law and similar proposed changes to Canadian copyright law.

Most artists I know learn about their copyrights when their rights are violated. Also, most artists do not understand the complex process of creation even though we are fully engaged with it. We do not understand the role of conscious and subconscious memory in our process, nor are we aware of the incredible amount of imagery we absorb every day.

I have learned from thinking about Bill’s email. I have realized that we are all vulnerable and that we can be certain of nothing. As creators, the better we get or better known we become, the greater the possibility we will be copied. And the more we make, the greater the potential we will consciously or subconsciously appropriate. So we have to be careful.

You can’t protect your rights if you do not understand them. You must also know and understand the rights of other creators if you are engaged in any form of referencing at all in your work. And, if you keep a diary or blog in which you record your sources and inspirations and in which you detail your developmental process, you can avoid conflicts over your work.