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¨oha· 'ano· -abel’s
1he 1reedom to /reate
c /reatin. 1reedom
¨oha· 'ano· -abel’s
1he 1reedom to /reate
c /reatin. 1reedom
BA (Hons) Graphic Design
Central Saint Martins College of Art and Design
University of the Arts London
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1he 1reedom to /reate
c /reatin. 1reedom
¨oha· 'ano· -abel
The power or right to act, speak, or think
as one wants without hindrance or restrain.
The use of the imagination or original ideas,
especially in the production of an artistic work.
Creativity and innovation always builds on the past. The past always tries
to control the creativity that builds on it. Free societies enable the future by
limiting the past. Ours is less and less a free society
Creativity and Innovation always
builds on the pas:
There are two things that I’m constantly concerned about. The
most important things for human kind. They make humanity prosper.
They are always linked and one cannot exist and achieve itself with-
out the other.
These two things are Freedom and Creativity.
It is in our nature to create. To bring ideas to life, thoughts and ideas that
have never existed before.
Nevertheless, I believe that most creative ideas are thought about with the
inﬂuence of other creative ideas. Sometimes the new idea is a new imagina-
tive concept, with a distant connection to the original work and sometimes
the new idea is directly based on other works.
In ancient Greece, Plato elaborated Socrates’ ideas, wrote them down and
added his own thoughts to them. On the other hand, Aristotle, Plato’s disci-
ple, contradicted his learning and developed his own outlook while criticiz-
ing his teacher’s doctrine.
As with philosophy, the nature of the creative process in any form is to
learn from the past and to build upon it.
Sometime we can clearly see the inﬂu-
ence of past works on the present in the
form of derivatives, as adaptations are. The
many adaptations to Shakespeare’s works are
a prime example. These are written plays,
known to everyone in our culture, that have
something to say about life in our own era,
though written in the 16th century.
The works of William Shakespeare are
in the public domain, they are part of our
cultural heritage and anyone can use them as
they like. There is no need to ask permission
from the author, and there are no restrictions
on the way of making derivatives from them.
Title page: Ashley Holt,
Notmickey, 2002, pen, paper
Part of the Illegal-Art.org
online exhibition for works
that were liable for copyright
Lawrence Lessig, Free
culture, O’Reilly open source
conference, San Diego,
CA, 24 July, 2002, www.eff.
New Oxford American
Dictionary 1.0, Apple
Public domain comprises
the body of all creative
works and other knowl-
edge in which no person
or organization has any
proprietary interest. Such
works and inventions are
considered part of the
public’s cultural heritage,
and anyone can use and
build upon them without
In most countries, all copy-
rights and patents have
a ﬁnite term and when it
expires, the work or inven-
tion is released into public
domain. Patents usually
expire 20 years after they
were ﬁlled. However, copy-
rights are more complex.
Generally they are expired
when the conditions, set by
the copyright law of spe-
ciﬁc nation, are satisﬁed.
Wikipedia – The Free Ency-
Anyone can make his own modiﬁcations to Shakespeare’s writings. Just take
a Shakespeare book close to you and start transforming it. It comes to my
mind that maybe this is another reason why people keep on adapting his
texts, aside from the fact that they are “masterpieces”. We can see it in ﬁlms
and plays like West Side Story
, A Midsummer Night’s Sex Comedy
and Guildenstern Are Dead (picture shown on page 2)
, 10 Things I Hate About You
, the TV series The Black Adder
, and more obviously in ﬁlms and plays that
carry the same names unchanged.
In music, the creation of new works is achievable with the help of other
sound pieces. It is possible to remake an older piece of music, giving it a
different taste, like covers to songs, or to mix a piece of music with other
sources, like new remixes by DJs and producers.
Producers like Moby and Fat Boy Slim and Hip-Hop artists like Public
Enemy and the Beastie Boys are consistently using samples from different
songs and creating their own art.
An example of the ﬂow of versions and remixes for one sound piece is
the tune Autumn Leaves. It was composed by the French composer Joseph
Kosma and written by Jacques Prévert (as Les Feuilles Mortes) to be performed
by Yves Montand in the ﬁlm Les Portes de la Nuit
In 1949 it was translated to English by Johnny Mercer and renamed as
Autumn Leaves. During the years it was performed by various artists like
Edith Piaf, Nat King Cole, Stan Gets, Miles Davies, Eva Cassidy, Diana
Krall and many more. The duo Cold Cut made an electronic adaptation to
the song in 1993, thus creating an ambient version and kicked off the Easy
Listening music genre. In 2001, another duo known as Way Out West lifted a
sample from Cold Cut’s version and created a dance ﬂoor hit with a mel-
ancholic twist, renaming it as The Fall. Later that year this new version was
remixed by John Digweed’s Bedrock.
The creation of a new piece of art which is based on another piece of
art is not only a part of the music scene. As well as adapting books into
ﬁlms, ﬁlm makers are giving credit to other directors, script writers or just a
speciﬁc genre by incorporating bits and pieces from those ﬁlms in their own
The motion picture Psycho
by Gus Van Sant, produced in 1998, is “a rec-
reation of the nightmare that started it all...”, according to the ﬁlm tag line,
referring to Alfred Hitchcock’s original motion picture from 1960. Apart
from being ﬁlmed in colour and having different casting and that the actors
played slightly different, in my view it is an exact recreation of Hitchcock’s
Broadway musical written
by Arthur Laurents, Music
by Leonard Bernstein, lyrics
by Stephen Sondheim.
Directed by Jerome
Robbins, Winter Garden
Theatre, New York, USA,
1952; Film By Jerome
Robbins and Robert Wise,
Written and directed by
Woody Allen, USA, 1982.
Stage play written by Tom
Stoppard, UK, 1966; Film
written and directed by Tom
Stoppard, USA, 1990.
Written by Karen
McCullah and Kirsten
Smith, directd by Gil Junger,
Created by Richard Curtis
and Rowan Atkinson, UK,
Written by Jacques
Prévert, directed by Marcel
Carné, France, 1946.
Written by Joseph Stefano,
USA, 1960Novel by Robert
Bloch, USA, 1958.
Yves Montand and Nathalie
Nattier in Les Portes de la Nuit.
original ﬁlm, shot-for-shot. It almost seems that no changes have been made
Sometimes it is hard to see the reasoning behind the remaking of a ﬁlm,
as seen in the example above, but none the less, the movie was made.
Additional new versions that American motion picture studios are making
are stories inﬂuenced by European cinema.
Films like the French Le Retour de Martin Guerre
, turned into Sommersby,
La Femme Nikita
which was remade in English as Point of No Return (titled
The Assassin in some countries)
and later produced as a television series
which was loosely based on the original movie. The British ﬁlm The Italian Job
from 1969 was remade into a new ﬁlm carrying the same name
though in a very different plot while keeping the main characters and the
famous Mini Cooper raids. Americanizing the ﬁlms to ﬁt Hollywood style.
Written by Jean-Claude
Carriére, Daniel Vigne
and Natalie Zemon Davis.
Directed by Daniel Vigne,
Written by Nicholas
Meyer and Sarah Kerncham.
Directed by Jon Amiel,
Written and directed by
Luc Besson, France, 1990
Written by Robert
Getchell and Alexandra
Seros. Directed by John
Badham, USA, 1993
La Femme Nikita, Created
by Joel Surnow and Robert
Cochran, Canada, 1996-
Written by Troy Kennedy
Martin, directed by Peter
Collinson, UK, 1969
Written by Donna and
Wayne Powers. Directed by
F. Gary Gray, USA, 2002.
Psycho, the shower scene.
Left: Anne Heche in Gus
Van Sant’s remake of 1998.
Right: Janet Leigh in Alfred
Hitchcock’s original from
Artist Mark Kostabi said he was inﬂuenced by the painter Edward
Hopper among other artists.
Maybe he was inﬂuenced, but in a series of
paintings Kostabi shows how he identiﬁes himself with Hopper. He reﬂects
it in his own speciﬁc way, and make the viewer understand the speciality of
the new paintings, though they are similar in scenario and perspectives as
Interview with American
artist - Mark Kostabi,
March 2004, www.artquotes.
(Beehive) - journal of the depart-
ment of behavioral sciences, No.
11, August 2005, Rishon
Le’Zion, Israel: The College
Left: Mark Kostabi, Blue
Oblivion, 1991 (oil on canvas,
60 x 64 cm)
Right: Edward Hopper,
Hotel Room, 1931 (oil on
canvas, 152 x 166 cm)
Left: Mark Kostabi, Aesthetic
Codes (Missing Pieces), 1997
(oil on canvas 46 x 61 cm)
Right: Edward Hopper,
Morning Sun, 1952 (oil on
canvas, 71 x 102 cm)
Left: Mark Kostabi, First,
Last and Security, 1988 (oil on
canvas, 69 x 84 cm)
Right: Edward Hopper,
Conference at Night, 1949 (oil
on canvas, 70 x 102 cm)
A distinct example for contempo-
rary inﬂuence by previous, although
modern, work is a famous Honda
Swiss artists Peter Fischli and David
Weiss created in 1987 a kinetic energy
installation which they ﬁlmed and
released as Der Lauf der Dinge (The Way
A 30 minute ﬁlm, without
narration or interviews but with an
ambitious construction: 100 feet of
physical interactions, chemical reac-
tions, and precisely crafted chaos.
Advertising agency Wieden+
Kennedy with the director Antoine
Bardou-Jacquet at the Partizan Midi
Minuit production company created a
Honda advert called Cog.
The advert, which runs for two
minutes, is a chain reaction involving
parts of a Honda Accord, leading to
the presentation of the new model (as
of 2003), under the tag line “Isn’t it
nice when things just work?”
Fichli and Weiss’ ﬁlm is well known.
People who are familiar with it, are cer-
tain that the Honda advert was based
on the ﬁlm.
Wieden+Kennedy (and Honda),
have never gave the two artsits credit
for the idea.
Above: P. Fischli and D.
Weiss, Der Lauf der Dinge,
1987, T&C Film AG, www.
Jeremy Phillips and
Ilanah Simon, IP Kat weblog,
Cog, 2002, Honda UK, www.
(a) Jenson, ~1469
(b) Golden Type, 1890
(c) Centaur, 1914
(d) Adobe Jenson, 1995
(e) Ruit, ~1990
(f) Scala, 1991
The examples on the facing page
show the development of the typeface
introduced by Nicolas Jenson around 1469 (a). Jenson was a Frenchman who
had a printing ﬁrm in Venice and his typefaces merged the Gothic style of
France and Germany with the Italian Humanist style. This “mix” gave birth
to what we know today as roman typefaces. Gerrit Noordzij, a Dutch typog-
rapher, teacher and theorist, who designed the typeface Ruit in the 1990’s
(e), which is based on Jenson’s typefaces, explains that Jenson “adapted the
German letters to Italian fashion (somewhat rounder, somewhat lighter), and
thus created roman type”.
The adaptation sequence begins in 1890 when Jenson’s typeface was
reformed by William Morris in England, as Golden Type (b).
Centaur (c) was introduced by Bruce Rogers in 1914 and captured Jenson’s
strokes, with less density than Morris’ dark page features.
Robert Slimback, who reconceives historical typefaces for digital use,
designed Adobe Jenson in 1995 (d). This typeface is less decorative than
Scala (f), designed by the Dutch typographer Martin Majoor in 1991, is a
contemporary realization of the same type face, and though it has geometric
serifs and rational forms, it reﬂects the calligraphic origins of the type.
Many people are not aware that most fonts we are so accustomed to use
today are the direct heritage of early-modern printers/publishers.
These examples, and many others through history, tell the story of human
culture and human creativity. We would like to think that we “bring ideas to
life.” That we create “thoughts and ideas that have never existed before,”
but this is not necessarily true. They have existed before but in a different
form, in a different medium, or with a different concept. We are using other
people’s creative thoughts and processes in order to make our own and we
cannot escape it. This is how our culture have evolved and this is our cultural
In order to continue and create - and thus - to continue our cultural evolu-
tion, we need to have the freedom to do so, and hence, to have our freedom
to use creations from the past.
Today I feel that our freedom to create is being diminished.
Ellen Lupton, Thinking
with type: a critical guide for
designers, writers, editors, & stu-
dents, New York: Princeton
Architectural Press, 2004,
“Modern culture... [is] a hybrid nation of explicit inﬂuences,
generous borrowings, and inside references. It’s a remix
culture, a layer-upon-layer construction that lets us marvel
at Tarantino’s Hong Kong homages, delight in the Dean
Scream, and wink at phantom edits.”
Thomas Goetz, ‘Sample the future’, Wired, Issue 12.11, November 2004, New York: Conde-Nash Publications, 181-183
1he past always tries to control the
creativity that builds on i:
Our freedom to create goes in two ways. On one hand, there is the sover-
eignty of the artist over his own work. On the other hand, there is the liberty
of another artist to originate a new piece while incorporating others’ crea-
tions. Of course, both artists would like to keep their own rights before and
after they produce a piece.
Copyright law determines what is legal to use and what is not. It keeps
works safe from other people’s hands. It gives the creators the rights to most
forms of use of their work. These creators are guaranteed the exclusive
right to reproduce the work, distribute copies of it, perform it and display it
On some occasions it is possible to obtain a license from the copyright
owner in order to reproduce, distribute, perform and display the work or
create a derivative work from it.
The deep meaning of the law is that an artist who is about to create a new
piece while using another’s creation, cannot include the material without
the permission of the copyright holder. For example, an artist cannot take
a story of his favourite writer and make it into a play or a ﬁlm. In order to
make a derivative work of any form, the artist should obtain licence to do so.
However, most Western copyright laws establish the right of fair use,
which is registered as “a defence to copyright infringement, [and] allows
scholars, researchers, and others to use protected works for socially produc-
In other words, the right of fair use allows me, for exam-
ple, to incorporate quotes in my essay, without seeking permission of their
Fair use is hard to quan-
tify and the main factors to
be considered shall include
the purpose and character
of the use, the nature of the
copyright work being bor-
rowed from, the amount and
importance of the portion
used, and the effect of the
use on the potential market
or value of the copyright
work. Only court can deter-
mine whether a particular
use is fair use.
Lloyd J. Jassin, Fair use in a
nutshell: a roadmap to copyright’s
most important exception, www.
Derivative work means “an artistic creation that includes aspects of work previously created
The United States copyright law deﬁnes that derivative work “is a work
based upon one or more pre-existing works, such as a translation, musical arrangement,
dramatization, ﬁctionalization, motion picture version, sound recording, art reproduction,
abridgment, condensation, or any other form in which a work may be recast, transformed, or
adapted. A work consisting of editorial revisions, annotations, elaborations, or other modiﬁ-
cations which, as a whole, represent an original work of authorship, is a derivative work”
Wikipedia – the free encyclopedia, www.en.wikipedia.org/wiki/Derivative_work
Copyright Law of the United States and Related Laws Contained in Title 17, chapter 1,
section 101 of the United States Code, www.copyright.gov/title17/
Copyright is “a form of
intellectual property which
secures to its holder the
exclusive right to produce
copies of his or her works
of original expression, such
as a literary work, movie,
musical work or sound
recording, painting, com-
puter program, or industrial
design, for a deﬁned, yet ex-
tendable, period of time.”
Wikipedia – the free encyclo-
My intension in this paper is to shed light, amongs other things, upon the
foloowing problems. Even though some rights can be granted by fair use,
copyright law imposes considerable restrictions on creativity.
The ﬁrst problem: “While the tradition of fair use with text is fairly
mature, that tradition is much weaker with ﬁlm, photographs, and sound”.
The Sixth Circuit Court of Appeals stated in September 2004, that there is
no right of fair use in musical recordings. “Get a licence or do not sample”
held the court. In other words: sampling is piracy, and the law bans piracy.
This topic will be elaborated further in a subsequent part of this paper.
The second problem: legal changes grant the full rights for almost unlim-
ited period of time to the owners and forgets disregard the rights of our
culture by preventing works from entering the public domain and becoming
a part of the collective heritage.
In a series of extensions, started in the 19th Century, copyright rules got
gradually tightened and the possibilities of creativity in Western culture were
In 1993 the European Union passed the ‘Directive on harmonizing the
term of copyright protection’, which ensured that there was a single duration
for copyright across the entire EU. The duration was set in accordance with
‘Creative freedom for
all’, Wired, Issue 12.11,
November 2004, Conde-
Nash Publications, 188-189,
I would like to make it clear that this work is not intended to diminish the
idea of copyright or the importance of copyrighted works. Copyright gives
the creator of an original piece the rights to his piece, which are rightfully
his. However, in addition to protecting the owner’s rights, the copyright
also forbids many things that do not neccesarily infringe the rights of the
Lawrence Lessig is a professor of Law at Stanford Law School and founder of the school’s
Center for Internet and Society, who dedicated a signiﬁcant part of his career and public
activity to copyright laws and their implications on culture and society. Lessig teaches and
writes in the area of comparative constitutional law, contracts, and the law of cyberspace.
Recently, Lawrence Lessig was named one of Scientiﬁc American’s Top 50 Visionaries for
arguing “against interpretations of copyright that could stiﬂe innovation and discourse
online.” He is the author of The Future of Ideas, Code and Other Laws of Cyberspace and Free
Culture - The Nature and Future of Creativity.
Professor Lessig also chairs the Creative Commons project and a boardmember of the
Electronic Frontier Foundation, a boardmember of the Center for the Public Domain, and a
commission member of the Penn National Commission on Society, Culture and Community
at the University of Pennsylvania.
the law in Germany, which had the longest copyright term in any of the EU
states, for life of the author plus 70 years after his death. This extension also
revived copyrights that had already expired.
In a form of reciprocity (the extension was made available within the EU
to non-EU copyright owners) it lead the way to the controversial US Sonny
Bono Copyright Term Extension Act of 1998. This act extended the dura-
tion of US copyright by 20 years, to ﬁt with the EU, in the case of individual
work, or 75 to 95 years in the case of corporate authorship and works that
were ﬁrst published before 1st January 1978.
The act increased the copyright term for works that were still under
copyright by 20 years as well, thus “effectively ‘froze’ the advancement date
of the public domain in the United States for works covered by the older
ﬁxed copyright term the law gave. Under this act, no additional works made
in 1923 or after, and that were still in copyright in 1998, will enter the public
domain until 2019”.
This act, nicknamed ‘The Mickey Mouse Protection Act’, also halted the
release of Walt Disney’s animated short ﬁlms from 1928, Steamboat Willie
and Plane Crazy,
as they were about to enter the public domain between
2000 and 2004.
Most people are not aware that Disney’s Steamboat Willie was a parody
on Buster Keaton’s motion picture Steamboat Bill, Jr.
which was produced
earlier that year and was not part of the public domain. Steamboat Willie is
nowadays more remembered than Keaton’s original, maybe due to the fact
that it was Mickey Mouse’s ﬁrst appearance.
Copyright and copyright extensions
The modern concept of copyright regarded the reproduction of books in print and was originated in Britain in 1710 with
the Statute of Queen Ann. The new law granted the exclusive copyrights to authors (as well as publishers), for a period of 14
years and the ability to extend the term by another 14 years. If the author wouldn’t extend it or if if the 28 years have passed
the work would pass into the public domain.
The law then didn’t include derivative works, which meant that any person could adapt an existing piece of printed material
to a different form.
In 1790 the American Congress passed a law similar to the British Statute of Ann.
Gradually, during the years, the the law became more restricting and more extensions to the copyright term have been made.
A change in the law in 1831 extended the term to 42 years.
The Berne Convention
of 1886 importantly established the recognition of copyrights between sovereign nations (before,
nations refused to recognise the works of foreign nationals as copyrighted). The convention also provided for a minimum
term of private copyright protection to the life of the author plus ﬁfty years, with the ability to change it within any country.
In 1909 the American law extended the term of copyright to 56 years from the day of publishing. In the 20th century the
term of corporate authorship was extended 12 more times, and 59 years in 1962. From 1965 to 1976 a series of extension acts
have gradually increased the term to 75 years of copyright. including the Sonny Bono Copyright Term Extension Act of 1998.
Lawrence Lessig, Free culture: the nature and future of creativity, 2004 New York: PenguinBooks.
Full name: The Berne Convention for the Protection of Literary and Artistic Works.
– the free encyclopedia, www.
Written and directed by
Walt Disney and Ub Iwerks.
Written and directed by
Walt Disney and Ub Iwerks.
Written by Carl Har-
baugh, directed by Charles
Reisner, USA, 1928.
Mickey Mouse starring in
Walt Disney’s Steamboat
In addition, Walt Disney based many of his feature animations on stories
in the public domain, written by other writers like the Brothers Grimm and
Lewis Carrol . Among the famous examples are ﬁlms like Snow White and
the Seven Dwarfs (1937), Pinocchio (1940), Cinderella (1950), Alice in Wonderland
(1951), Beauty and the Beast (1991) and more,
As a whole, the afore mentioned in fact means that Walt Disney and
the Disney corporation are using the “Rip – Mix – Burn” way, if to quote
Apple’s tag line from 2001.
Albeit, Disney wouldn’t allow other people to treat their works in the
same manner. Every time Mickey Mouse is about to pass into the public
domain, copyright terms are extended, and “No one can do to Disney, Inc.
what Walt Disney did to Brothers Grimm”.
Copyright law has important implications on our culture and society. It
not only limits the possibilities of creativity, but also diminishes the cultural
heritage available to the public.
By limiting the ideals of fair use the legal system disencourages creative
thought and the production of derivative works which could have had cul-
tural signiﬁcance. By continual extension of the copyright term, it prevents
cultural works from entering the public domain and thus deters the develop-
ment of cultural resources.
“Never has it been more controlled... Never
in our history have fewer people controlled
more of our evolution of our culture.”
Lawrence Lessig, The Future of Ideas, 2001, New York: Random House.
“Rip. Mix. Burn.” was
Apple’s controversial tag line
in an advert for a new iMac
they released in 2001, which
included a CD-RW drive.
This was the ﬁrst computer
to include such a device as
a standard feature and the
advert caused an angry call
out from media moguls.
Lawrence Lessig, Free
culture, O’Reilly open
source conference, San
Diego, CA, 24 July, 2002,
Hybrid image by the author,
incorporating the photograph
Mellow Yellow by Tom Forsythe,
1999, and text based on
the letterpress work God
Curs is less and less a free society
In the following part I would like to elaborate further the idea that I have
already expressed at the beginning of this paper: the creative process is inﬂu-
enced by works that have existed before.
As I have previously stated, copyright law can sometimes be very restrict-
ing for innovative artistic creation. In many ways the idea of intellectual
property and corporate lobbying are holding back aspiring artists from
creating new pieces. Even when an artist creates a work of art based on an
existing copyright protected work, there is always the possibility that if his
work will be regarded as infringing copyright then it will be prevented from
In order to substantiate my argument, I would like to
present a few examples in which copyrights protected
works limited or tried to limit creativity, many times on
the expense of important social messages that artists tried
to convey in their art.
of August, 1999, Tom Forsythe was served
with 30 something pages of a complaint from Mattel,
the company that created and produces Barbie dolls.
The complaint involved alleged copyright and trademark
infringements over his series of photographs called
“Food Chain Barbie”.
Forsythe created the series as a “stab at mindless con-
sumerism, the impossible beauty myth and the advertising
that brings it all into our lives”.
Mattel sued Forsythe for displaying Barbie as the piece
of plastic it really is rather than as the role model that
Mattel has marketed it as. One of the main reasons that
corporations sue artists like Forsythe is to frighten them
and make them back off from using copyrighted work.
The ensuing trial (which lasted for four years) all backﬁred Mattel and
they lost at the Ninth Circuit Court of Appeals. The judges stated that the
case was ‘unreasonable and frivolous’ and ordered the company to pay all the
legal fees and expenses.
Facing page: Tom Forsythe,
Land of milk and Barbie II,
Below: Tom Forsythe, Mixer
fun, 1999, photograph.
Even though this case is an example of an attempt to control
creativity using copyright law, the copyright owner didn’t succeed
in blocking the art. In other cases artists were not so fortunate.
Air Pirates were a group of cartoonists who created two issues
of an underground comic called Air Pirates Funnies in 1971.
The members of the Air Pirates group shared a common
interest in styles of comic strip masters. Each of the group
emulated or paid homage to a famous cartoonist. The founder of
the group, Dan O’Neill, had an obsession with Walt Disney’s Mickey Mouse.
O’Neill, with another member of the group, Gary Hallgren, created stories
that were based on some of Disney’s characters. The new creation engaged
Disney characters in adult behaviours such as sex and drug consumption.
The aim of O’Neill and Hallgren’s stories were to confront Mickey Mouse
as a symbol of conformist hypocrisy in American culture and the increasing
dominance of the Disney corporation over the chighly inﬂuential American
Disney, in turn, ﬁled a lawsuit alleging, amongs other things, copyright
infringement, trademark infringement and unfair competition against most
of the group’s members. The Pirates responded by alledging that their
parody of Mickey Mouse was fair use.
The Air Pirates lost the case. The court said that the Air Pirates use of
Mickey Mouse did not fall within the ambit of fair use.
Illustration from the
Mouse Liberation Front’s
Air Pirates Special Pirate
Edition, author unknown.
Left: Air Pirates Funnies,
Right: Air Pirates Funnies,
A different example shed light on how the law can be unrestricted.
This other example comes from the other side of the “iron curtain”.
A character called Cheburashka was created in the Soviet Union in 1966.
According to the story, Cheburashka is a creature unknown to science,
and one of the protagonists in the story Crocodile Gena and His Friends,
created by Russian writer Eduard Uspensky. Cheburashka is also the hero of
an animated ﬁlm series by Soyuzmultﬁlm studio.
Cheburashka is a very famous and loved image in Soviet culture. He was
chosen as an ofﬁcial mascot for the Russian Olympic Team for the 2004
Olympic Games in Greece.
In 2003, Andrey Kuznetzov and Maksim Pokalev launched a project,
named “Cheburgen”, as homage to the famous hero. The project accepted
every work on condition that it “will, either implicitly or explicitly, depict the
images of the great cartoon, familiar to all normal people”.
The project became an immediate success in Russia, especially after it was
published via the internet. Shortly after the project was launched, everybody,
not only artists, could contribute their works to the project. Its website
became a place where people can share their humour, interpretations and
creativity inﬂuenced by Cheburashka.
During the Communist regime in the USSR, copyright laws virtually did
not exist. The advancement of copyright began in Russia only after 1990,
and the rules are less draconian than in the rest of the world.
The concept of Kuznetzov and Pokalev’s exhibition, works which are
based on the original creation, and actually incorporated other famous
The Hieroglyph, www.hiero.
Left: One second before awaken-
ing from a dream caused by the
ﬂight of a bee around a pome-
granate, Salvadore Dalí, 1944,
oil on canvas (51 x 40.5 cm)
Right: Urmany-Ustu, Andrey
Part of his series, called
Cheburaska in famous
places, artworks or images.
artwork, was possible due to the relative openness of the Russian
copyright laws and a long cultural tradition where such law didn’t exist
at all. When it comes to creating art for the sake of creation, even
when using copyrighted material, the copyright owners, in Russia, are
Probably the most illustrative examples to show the impeding effect of
copyright on creativity comes from the music industry.
In 2004, Brian Burton, a young producer better known as Danger Mouse,
mixed Jay Z’s The Black Album
, with The Beatles’ White Album
, and called
it The Grey Album. He soon sent out 3,000 promo copies.
Danger Mouse used the music of The Beatles to create the sounds and
backing vocals for Jay Z’s album. Danger Mouse cut the original Beatles’
tracks and mixed the beats and pieces together with The Black Album’s a-
cappella version. Def Jam, Jaz Z’s label, released that version in order to let
other musicians recreate and to build upon it.
Unlike Jay Z and Def Jam,
EMI, who control the rights to the
sound recordings of The Beatles,
didn’t want to share these rights
with others. They handed Danger
Mouse a ‘cease-and-desist’ order,
which meant that he needed to
stop any reproduction of the Grey
Album, or else they will take the
matter to the court. Danger Mouse
complied with EMI but the album
continues to circulate on the
internet, by activist websites like
Stay Free Magazine
and in by peer-to-peer (P2P) software users. Both EMI
and Sony/ATV sent legal threats to many of those websites but later backed
down and The Grey Album remains safely online.
“As far as art is concerned, I’ve never really worried myself too much
with what’s legal. At the end of the day, I’ll still make the same kind of music
I’ve always made – even if it’s just for me and my friends to hear,” Danger
Mouse said last year in an interview to Wired Magazine.
Jay Z, The Black Album,
Roc-a-fella/Def Jam, USA,
2003; Jay Z, The Black
Album (acappella), Roc-a-
fella/Def Jam, 2004
The Beatles, White Album,
Apple/EMI, UK, 1968.
The publishing side of
The Beatles’ catalogue is
owned by Sony Music/
ATV Publishing, a venture
between Sony Music and
Stay Free Magazine, www.
Eric Steuer, ‘The remix
masters (14)’, Wired, Issue
12.11, November 2004,
Andrey Kuznetzov, The
horrible revenge of the national
The Verve, headed by Richard Ashcroft, released
their third album, Urban Hymns, in 1997.
Bitter Sweet Simphony, was released as a single prior to
the album, and reached #2 in the UK singles chart.
Later, the album reached #23 on the American
Billboard charts. This was the ﬁrst time in The Verve’s
career that they had received high praises from the
critics as well as major commercial success.
In Bitter Sweet Simphony, Richard Ashcroft used a
sample from an orchestrated version of one of The
Rolling Stones’ minor hits, The Last Time.
Bitter Sweet Symphony was written almost entirley by
Richard Ashcroft, he gave credit to Keith Richards
and Mick Jagger.
The Verve cleared the rights for the sample before the release, but after
the great success of the song, one of The Rolling Stones’ former managers,
Allen Klein, who owns The Rolling Stones’ pre-1970 catalouge, sued the
group for using more than it was discussed in the licencing agreement. The
Verve vehemently disputed.
The legal battle resulted with the group turning over 100% of the
royalties from the song, as well as copyright and songwriting credits to
Klein and the Rolling Stones.
Moreover, Allen Klein used his newly acquired rights over The Verve’s
song, and — disregarding the group’s objection — licenced it to Nike, to
be used in a multi-million dollar television campaign.
To add even more bitter to the symphony, when the song was nominated
for a Grammy award, the nominees were Mick Jagger and Keith Richards,
and not The Verve.
The group broke up after Ashcroft suffered from a nervous breakdown
as a result from the loss.
The Rolling Stones’ The Last Time was actually inspired by a traditional
Gospel song called This May Be the Last Time.
The Stones’ derivative was
based on a performance by The Staples Singers, which have never recieved
any royalties for it. As far as I know no one owns the rights for the original
song and the lyrics were changed by the Stones, but many people feel that
The Staples Singers were ripped off and should have been compensated.
From left: Peter Salisbury,
Simon Jones, Richard Ash-
croft, Nick McCabe, Simon
The Verve, Urban Hymns,
Virgin, UK, 1997.
The Rolling Stones, Out
of Our Heads, Abkco, US,
The Staples Singers, This
May be the Last Time, VeeJay,
The examples above strongly suggest that our freedom to develop our
culture has been diminished, and we constantly losing the control of it. I
believe that today the control over the culture is concentrated in the hands
of a group of few strong and powerful people while it is supposed to be in
the hands of the public. The small group that controls the culture has the
power and the money to extend its inﬂuence over senators, judges and even
laws, and these have become their helpful hands in obtaining an unlimited
control over products, services and ideas. I feel that the culture today is not
OUR culture; I feel that it is copyrighted culture. It is owned, registered and
trademarked, especially by media corporations and others of their kind.
When it comes to the big media companies, the issue becomes more
complicated. It is not a person we need to contact in order to get permission,
it is an organization that seeks proﬁts and revenues. These companies are
making their money from the royalties and from selling the rights of their
Almost every form of consumer media is being touched by the long
hands of the big media corporations.
Time Warner and Disney, amongst others, own production studios for
ﬁlms, television and music; publishing companies of books, graphic novels
and magazines; online websites and software manufactures; television
and radio channels. On most occasions they own companies that have
Corporate Connection, v2 (part),
outreach in different sectors so the works stays “in house”. They create the
media, which, most of the time, passes from one ofﬁce to another, making
derivatives of the work within the company: from a novel (for instance,
Batman) - through the publishing house (DC Comics) - to the ﬁlm studio
(Warner Bros.) - and to the music production (Warner Music Group) and
ﬁlm distributor (Warner Bros. Pictures Distribution and Warner Home
Video). The employees and contractors of these companies, create art in
any medium or form, which are immediately subjected to the copyright
ownership of a respective corporation. These creations are then passed to
us, the consumers.
From the corporation’s point of view, the culture moves in one direction -
from them to us. We have no right to do anything with these creations, while
they become more and more important constituents of our culture.
These corporations don’t care about the culture, although they control it.
They are taking parts of our culture, remixing it, and then, not letting anyone
touch “their” creation.
I understand that every person has the right for his own property, be it
physical or intellectual, and that what is done with a property is subjected
only to the rights of the owner. However, when artistic work goes to the
public and becomes a part of the collective culture, in some aspects, this
work should belong to the public.
Mickey Mouse and Barbie are registered trademarks as well as a
copyrighted material. But from the cultural perspective they also have an
additional, broader role. They are symbols which Disney and Mattel were
trying to establish as culturally important and to make people identify
themselves with. Some people might want to use these things, which have
already become acceptable cultural symbols in different ways. Some might
even want to use them in order to criticize them and their message.
Art always looking on life as it is, always takes parts of the culture and
changing it, and as these corporate symbols are now part of the world, artists
should some right to transform them.
When everything is copyrighted – little space is left for creation.
Moreover, the creation can become theft. People who try to build upon
culture, as it has always been, without clearing copyrights beforehand, are
called pirates, and there is a great chance that they will be prosecuted.
Who has the right to judge on what occasion artistic derivatives should be
authorized or shouldn’t?
Top: Walt Disney’s Mickey
Mouse, born 1928.
Bottom: Mattel’s original
Barbie in swimsuit, 1959.
1ree societies enable the future by
limiting the pas:
Technological developments of the past ten years posed a serious
challenge to copyright.
With the use of the internet and the development of new technologies it
is easier to come by copyrighted material that artists would like to use and
to build upon. Search engines like Google and Yahoo!, P2P software like
KaZaA and Lime Wire, and already built-in software like Apple’s Garage
Band and iMovie give more and more prospective creators the ability to
transform material. Until recently, these devices were hard to come by. Thus,
as technology progresses, the copyright holders are trying to prevent the use
of this work and to restrict that ability in different ways.
The Digital Millennium Copyright Act (also known as DMCA) was introduced in 1998 and restricts some of the
supposedly illegal uses of copyrighted material on digital platforms. “The act criminalizes production and dissemination of
technology that can circumvent measures taken to protect copyright, not merely infringement of copyright itself, and height-
ens the penalties for copyright infringement on the Internet.”
In addition, The DMCA unintentionally disregarding fair use and unregulated use. These uses are traditionally accepted by
the culture and are part of our society.
This means that hacking is illegal, even if the hacker is trying to secure his right of fair use or unregulated use by hacking
a device and improve it for his own use. The sharing of knowledge of hacking is illegal as well, unless it is for blocking other
In 2004, the European Union passed the EU Copyright Directive, or EUCD, which is similar in many ways to the DMCA.
The Inducing Infringement of Copyright Act (referred to as the Induce Act or as IICA ), is a bill which was written
in 2004, and, unfortunately, might pass by the US Senate. It is intended to ﬁght digital pirates by legally liable “whoever inten-
tionally induces any violation” of copyright law. The bill is extremely broad and could lead to prosecution of peer-to-peer
software makers, web sites, and might overturn home recording and fair use rights pioneered by the famous Betamax case of
1984. Many critics feat that certain tools used to today (such as CD ripping and burning software, as well as music players like
the iPod) could be considered to “intentionally induce” copyright violations, despite their utility for fair use purposes.
No Electronic Theft Act (NET Act), is an American federal law provides for criminal prosecution of individuals who
engage in copyright infringement, even when there is no monetary proﬁt or commercial beneﬁt from the infringement.
Maximum penalties can be three years in prison and up to $250,000 in ﬁnes.
Prior to the enactment of the NET Act in 1997, copyright infringement for a noncommercial purpose was apparently
not punishable by criminal prosecution, although noncommercial infringers could be sued in a civil action by the copyright
holder to recover damages.
Wikipedia – the free encyclopedia, www.en.wikipedia.org/wiki/DMCA
Wikipedia – the free encyclopedia, www.en.wikipedia.org/wiki/Induce_Act
Wikipedia – the free encyclopedia, www.en.wikipedia.org/wiki/NET_Act
Facing page and back
cover: Diana Thorneycroft,
Mouse, Boy, Dog, Man, White
Mouse, Man with Large Nose,
Graphite on paper, 2001-2.
Part of the Illegal-Art.org
online exhibition for works
that were liable for copyright
In the United States and other places, copyright is automatically attached
to the original work of authorship upon its creation. The law requires to get
permission before using a copyrighted work, unless that use is fair use. Any
uses within the reach of the exclusive rights that the copyright grants require
These exclusive rights usually leave out a lot of uses, which are independ-
ent of the regulation of copyright. Where fair use is a privileged use of a
copyrighted work, unregulated use refers to the uses that don’t make a copy,
and thus, not infringe the copyright. For example: Reading a book or giving
that book to somebody else.
In cyberspace, this traditional balance has changed. Since every use within
the scope of digital technology produces a copy - every use needs to get
permission ﬁrst, or rely on the doctrine of fair use to acquit from what oth-
erwise would be an infringement.
The need for permissions means that a person who wants to create a
derivative will need a lawyer to help him with the case.
The idea for the Creative Commons
was conceived by Lawrence Les-
sig and Eric Eldred when Lessig represented Eldred in a case challenging
the Unites States Congress’ Term Extension Act. Lessig said: “Early on,
he asked me whether there was a way that we could translate the energy
that was building around his case into something positive. Not an attack
on copyright, but a way of using copyright to support, in effect, the public
The Creative Commons choice of licences comes and ﬁlls in a place
where lawyers are not needed. They call it a “Lawyer free zone”. The estab-
lishment of Creative Commons provided proper answers to questions like:
“What can I do if I want to share my piece?” and “How can I allow deriva-
tives or remixes of my work?”
The idea, which was based on an original concept by the Free Software
Foundation (FSF)45, was to produce simple licenses that artists, authors,
educators and researchers could use in order to give users around the world
some privileges in ways of using their works. With a Creative Commons
licence you can give others the privilege to use your work, or you can know
if you are allowed to share or make a derivative without asking a direct per-
mission from the creator.
Lessig said that “If the default rule of copyright is “all rights reserved,”
the express meaning of a Creative Commons licence is that only “some
rights [are] reserved.”
Lawrence Lessig, CC
in review: Lawrence Lessig on
supporting the commons, news-
letter, 6/10/2005, www.
The Free Software
Foundation promotes the
development and use of
free softwares, www.fsf.org,
Lawrence Lessig, CC
in review: Lawrence Lessig on
supporting the commons, news-
letter, 6/10/2005, www.
The owner selects the type of copyright licence which suites him the
most, by using 4 basic components: Attribution (meaning the creator requires
attribution as a condition of using his or her creative work); NonCommercial
(meaning the creator allows only a noncommercial uses of his or her work);
No Derivatives (meaning the creator asks that the work be used as is, and not
as the basis for something else); and Share Alike (meaning any derivative you
make using the licenced work must also be released under a Share Alike
While using these options, Creative Commons are offering 6 core licenses,
all bearing a (cc) mark instead of the copyright © mark. They also included
licences to release copyrighted material into the public domain or giving
licenses similar to the original Satute of Queen Ann, of 14 plus 14 years
which they call Founder’s Copyright.
These licences do not only enable the creators to permit a certain usages
of their work, but also help the users to ﬁnd out what they can do with
a speciﬁc work. The Creative Commons website, and search engines like
Google and Yahoo!, let users search for works which are registered under a
Creative Commons licence.
One of the Creative Commons’ projects is ccMixter, a community music
site, featuring remixes licenced under Creative Commons, “where you can
listen to, sample, mash-up, or interact with music in whatever way you
A nice feature of the ccMixter website is that a user can track the
development of a song, from the original, through all its adaptations.
Flickr, is a privately owned website recently bought by Yahoo! is an online
photo management and sharing application that allows the set up Crea-
tive Commons licences to pictures and to share them with other people in
accordance to the proper licnece.
Another website which is deals with freedom of works is The Internet
Archive. It is a non-proﬁt organization that was founded in 1996 in order “to
build an ‘internet library’, with the purpose of offering permanent access
for researchers, historians, and scholars to historical collections that exist in
The Internet Archive contains collections of texts, audio, moving-images,
software and archived web sites. They are also collecting Public Domain
material which can be digitally preserved.
FreeCulture.org is an international, predominantly run by students, organi-
zation, which believes “that culture should be a two-way affair, participation,
and not merely consumption.”
It was inspired by Lawrence Lessig’s book
Free Culture and it seeks to place tools of creation and distribution, commu-
nication and collaboration in the hands of the common person through the
democratizing power of digital technology and the Internet.
One of their goals is to increase the recognition of the imbalanced con-
trol over our culture. Another goal is to restore that balance by returning to
the original 14+14 years copyright introduced by the Statute of Ann.
Example for a ﬂiar by the
Free Culture organization
at Brown University, USA,
I wrote this paper because I believe that creativity and
knowledge should be free.
Creativity in all ﬁelds is by necessity inﬂuenced by the past and
relies upon it. Thus, by extending the years of authorship, and
by passing harsh bills, the idea of copyright, as it is now, closes
many doors in front of contemporary artists.
The idea that we are free in our artistic creations is only a
false impression. The power and the status of the corporations
help to postpone the release of many creations into the public
domain. They extend their control on creativity and knowledge,
making them more and more unreached and further restricted to
Thus, the contemporary culture and cultural resources actually
become concentrated in the hands of the corporations.
I believe that in a free modern society, everyone should have
the right for free culture, for free art and for free knowledge, as
they constitute the power and the progress of the human kind.
My work and the ideas that I have expressed here were
inspired from the contributions of various groups and people
all over the world. I hope their effort to regain our freedom will
inspire other people too.
Freedom will help to advance human progress and creativity.
Lets share our knowldege and inspiration.
Lessig, Lawrence, Free culture, O’Reilly open source conference, San Diego, CA, 24 July, 2002,
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on canvas 51 x 40.5 cm), 1944.
Forsythe, Tom, Land of Milk and Barbie II, (photograph), 1999.
Forsythe, Tom, Mellow Yellow, (photograph), 1999
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Holt, Ashley, Notmickey, (pen, paper and photocopies), 2002.
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