Pastiche Research Papers - Academia.edu (original) (raw)

noun | cryp.tom.ne.sia | \, krip-,täm-‘nē-zhə\ The presence of phenomena in normal consciousness, which objectively are memories, but subjectively are not recognized as such. In an attempt to strike a greater sense of harmony between... more

noun | cryp.tom.ne.sia | \, krip-,täm-‘nē-zhə\
The presence of phenomena in normal consciousness, which objectively are memories,
but subjectively are not recognized as such.

In an attempt to strike a greater sense of harmony between copyright law and the freedom of expression – and to protect the status quo of the creative process from undue restriction and distortion – this paper proposes that the postmodern philosophy ought be applied to the analysis of non-verbatim artistic appropriation; through United States and European law. The application of the postmodern philosophy will, heretofore, be referred to as “the postmodern approach.” The postmodern approach, as it were, undertakes the “influence view” of creativity – advanced by Wendy Gordon – that “subconscious copying occurs constantly and usually bears valuable fruit.” That is to say, this paper argues that most, if not all, art is in part derivative – as a result of either deliberate appropriation or subconscious appropriation (i.e., cryptomnesia). To that end, the argument propounded is that the status quo of the creative process entails appropriation; and ought to be protected from undue restriction or distortion by doctrines such as the subconscious copying rule – where strict liability is imposed on alleged copyright infringers. This paper will, therefore, use the term “appropriation” in a neutral form to describe the act of taking – but with no intimation as to whether the act of taking is improper, or otherwise unlawful. Further, in light of the influence view of creativity, the postmodern approach posits that whether or not appropriation has occurred is irrelevant – once a sufficient transformation has been made upon that appropriation. In other words, the approach views the evolution of art as a series of building blocks that comprises art works that may occasionally appear to overlap upon one another. Further, this approach encourages the building upon the existing corpus of artwork and disregards such occasions of overlap.

With regard for copyright’s economic foundations, this paper argues that the most important consideration, in determining whether the secondary work is sufficiently transformative, ought to be based on the fourth factor of the United States fair use doctrine: whether the use of the original work in the second work has effected the potential market for or value of the original work. The Supreme Court, in Acuff-Rose, held that unless the second work is a complete verbatim duplication of the original and, therefore, likely to usurp the demand for the original work; the second work, a work of non-verbatim appropriation, may go as far as to suppress the demand for the original and remain lawful. To that end, this paper does not endorse verbatim piracy, illegal-downloading or wholesale illegal distribution of copyrighted works, a practice which, invariably, would not pass the fair use doctrine. However, this paper underlines the dictum, in Feist, that holds that the primary objective of copyright is not to reward the labor of authors but to “promote the Progress of Science and useful Arts.” Therefore, it is argued that rigid, property-based copyright discourse is more likely it is to disincentivize innovative activities and chill speech, rather than incentivize it. To that end, the application of the labor-desert theory (i.e., property-based rhetoric), to intangibles, is demonstrated in the following paper as manifestly incorrect and, in fact, extremely problematic.
Furthermore, with regard for copyright’s creative foundations, this paper argues that for the second work to be considered structurally transformative it must satisfy a different purpose or character. In line with Arthur C. Danto’s claim that there is a palpable difference between imitation and impersonation, this paper will put forward that when considering a non-verbatim second work, as a whole, where there is a sufficient degree of original contribution in addition to the appropriated portion: that second work out to fall within the meaning of the “comment” exception in the fair use doctrine and the “pastiche” exception in the Information Society Directive, in Europe. For the purpose of comparative support, examples of parody will be used to demonstrate the viability of this proposition and flexibility of the definitions of parody and pastiche exceptions,9 through both United States and European case law. Furthermore, this paper argues that the necessary degree of originality to be contributed, by way of transformative comment, ought to be directly proportional to the originality threshold in the relevant jurisdiction to secure copyright protection; in the United States and Europe, the threshold is relatively low. This paper also underlines the importance in considering the fact that, as Pamela Samuelson pointed out, many aesthetic works comprise un-protectable elements weaved together in a creative manner. Indeed, while compositions such as this are duly protected under Feist precedent, the more manifestly un-protectable the elements are that comprise the work – the more “thin” the copyright protection is said to be. Further, this actuality is something that the postmodern approach accounts for and it echoes the sentiments of Samuelson when it posits that the substantial similarity test in the United States has failed to adequately address this matter. This matter will be demonstrated with a particular interest in the Arnstein and Krofft variations of the substantial similarity test. Not merely does this paper posit that the question of discerning similarities, in law, between two works – is manifestly defective but it also argues that un-protectable elements are too often, misunderstood, misconstrued and awarded copyright protection, to the detriment of secondary artists.

Jonathan Griffiths wisely noted that exceptions in copyright law provide insufficient protection for the freedom to create and that it is not enough that copyright legal structure “may” secure its compatibility with the freedom of expression. Therefore, the postmodern approach aims to provide a semblance of a legal structure that invariably will secure copyright and freedom of expression compatibility. Furthermore, the approach secures its final and most valuable prospect of support in Europe’s emerging case law regarding copyright and the freedom of expression, where both copyright and the freedom of expression are afforded fundamental rights status and decisions are made on the basis of the proportionality doctrine and with regard for the public interest. To that end, this papers argues that the progressive postmodern approach finds both historical and contemporary support in United States and European case law for the building of a more harmonious relationship between copyright law and the freedom of expression and a means to protect the status quo of the creative process as it exists for present and – as Gordon encouraged – future artists. The postmodern approach is, in itself, an expression of protection for those cannot speak for themselves.