Professor Julie Cohen, Professor of Law at Georgetown University Law Center, gave a presesntation about copyright and creativity. Or more appropriately, copyright is not creativity. At the root of her argument is the claim that copyright law is premised on a defective model of creativity. It is the consequence of legal scholarship’s way of thinking about creativity which is not reflective of how creative practice actually occurs.
She argued that the idea that the process of creating is an internalised, uncertain and undefinable activity is problematic. Rather, artists see and engage with cultural products around them all the time. This is of course the ‘standing on the shoulders of giants‘/’everything has been said before’ argument. So naturally at this point we want to throw around works like ‘appropriation’, ‘reuse’, ‘remix’ which… as it has been said… has been said before…
Anyway, Cohen examplified her point with a number of examples including Sheppard Feirey’s Obama HOPE poster. Feirey created the poster in support of Barack Obama’s 2008 US Presidential Election campaign.
The artist (allegedly) appropriated a photograph taken by Mannie Garcia for Associated Press. As Cohen said, Feirey didn’t know Obama personally, nor did he have the opportunity to take a photograph of the candidate himself. He had to use something.
Possibly his decision to use an AP image rather than one taken by another copyright owner who he could have secured permission from or who was less likely to sue for infringement. Perhaps he wouldn’t need to front up to court now.
Cohen also put under the microscope the assumption that copyright stimulates incentives to creative by affording the creator exclusive rights to control the use of their creations.