Originality is the cornerstone of copyright law. The issue of originality has never been easy to determine. Depending on which country you are from, different standards of originality are used. Accordingly, there is no such thing as a universal standard of originality.
But regardless of which standard of originality one chooses to follow[1], there is no shortage of arguments and disagreement between creatives about what constitutes imitation on one hand and inspiration on the other.
Voltaire once said “Originality is nothing but judicious imitation. The most original writers borrowed one from another.” It is well known that Joseph Campbell’s “The Hero with a Thousand Faces” inspired George Lucas to write “Star Wars” and that Star Wars inspired “Battlestar Galactica”.[2] It is clear that not all copying amounts to infringement. So when does inspiration become imitation?
In 1985 Art Rogers, took a black and white photo of a man and woman holding a litter of dogs. The photograph was simply titled ‘Puppies”. The photo was used on postcards, greeting cards and other general merchandise.
Enter Jeff Koons, a renowned appropriation artist who created a sculpture called “String of Puppies” in 1988. Koons had found a postcard with Rogers’ “Puppies” picture and created a sculpture based on the photograph.
The only noticeable difference was that the “string” of puppies in Koons sculpture were blue, but everything else mirrored Rogers’ picture. Koons sculpture was a success as he sold three of them for a total of $ 367, 000.
Rogers sued Koons for copyright infringement and Koon raised fair use and parody as a defence. These two defences can be defined as:
- Fair use: allows limited use of copyrighted material without acquiring permission from the copyright holder
- Parody: an imitation of the style of a particular writer, artist, or genre with deliberate exaggeration for comic effect.[3]
The court ruled in favour of Rogers, the court found that the “String of Puppies” was substantially similar to the “Puppies” picture.
The court rejected Koons defence as he could have parodied the general type of art without copying the Puppies photo and that Koons was not commenting on Rogers’ work specifically, so fair use did not apply.
In my view, imitation and inspiration are separated by whether the work is transformative.
In the case of the String of Puppies the enquiry would be:
1. Was the material taken from the original work been transformed by adding a new meaning?
2. Was there value added to the original by creating new information, aesthetics, insights and understanding?[4]
If any of the two questions is answered in the negative, then the work can be considered an imitation.
Conclusion
There is nothing with drawing inspiration from your surroundings, just make sure that you reference the original work and “transform” the original work to create new content.
[1] School of thought regarding originality
The modicum of creativity- states a work needs to contain a modicum of creativity for the work to gain copyright protection
The sweat of the brow- states that the effort, skill and time spent creating the work renders the work original.
[2] https://www.business.com/articles/the-copyright-question-the-difference-between-inspiration-and-infringement/
[3] https://www.sitepoint.com/puppies-fun-ways-get-sued-copyright/
[4] https://www.nolo.com/legal-encyclopedia/fair-use-what-transformative.html
*All images are obtained from Google images
