A few months ago in a class about copyright in the digital era, Prof. Harry Lewis pointed out a wonderful quote by Thomas Jefferson.

If nature has made any one thing less susceptible than all others of exclusive property, it is the action of the thinking power called an idea, which an individual may exclusively as long as he keeps it to himself; but the moment it is divulged, it forces itself into the possession of everyone (non-exclusionary) and the receiver cannot dispossess himself of it.

What is Jefferson saying? That intangible ideas aren’t really property? (That would probably support Mark Zuckerberg’s reason for stealing his friends’ ideas) Maybe we should be rethinking intellectual property.

It is very interesting to see how the American society is very conservative about copyright in music, moving pictures, and scholarly work, but copyright means almost nothing in the world of visual art, and takes on a weird form in fashion. (Apparently Louis Vuitton can sue for copies of its monograms, but can’t if the same bag design is used with a different pattern in the textile.)

Left: Jim Krantz' photo for a Marlboro ad. Right: Richard Prince's photo

Take for instance, the fact that many contemporary artists derive their work from copyrighted photographs. Andy Warhol, for example, based a lot of his artwork on silkscreens of photos he found in newspapers or magazines. Marlene Dumas and Elizabeth Peyton both paint most of their portraits from newspaper photos as well.

But at least these artists offer their own interpretation to the original work.  People like Richard Prince take photographs of copyrighted photographs and claim them as his own artwork— and even manage to make a lot of money and be exhibited at the Guggenheim and Met. How is that art? some people may argue. Um, the art of cropping, perhaps?

So how come visual artists are allowed to freely “remix” (and even sell their work commercially) but musicians are only allowed to remix if they are not for commercial purposes? And why are there restrictions on how many bars they’re allowed to copy and so forth? If Vincent van Gogh could paint the same picture as Hiroshige and be lauded for it, why do singers have to pay if they’re singing someone else’s song?

Left: "Thunderstorm at Ohashi" by Ando Hiroshige, 1857. Right: "The Bridge in the Rain" by Vincent Van Gogh, 1887

The purpose for copyright in America is to “promote the progress of science and the useful arts” (providing an incentive for authors, inventors, etc.) whereas European tradition is more about the “natural right of man to control what you can create.” As for Asia, I don’t think there is a traditional sense of copyright at all, because inventions were credited to the commissioner,usually the king (but not being a legal expert, I wouldn’t really know, so tell me if I’m wrong.

Okay, so if the true reason for copyright in America is to “promote the progress of science and the useful arts” then maybe we shouldn’t have copyright at all. Because at least in the art world, the lack of obeying copyright law fueled innovation and creativity, redefining the genre over and over again. And at least until now, derivative works (even if they were not cited) were always discovered to be derivative works. I wonder what Lessig thinks. (Maybe it’s time to read Remix, which I’ve kind of been avoiding because the TOC wasn’t exactly what I was expecting from the title.)