There has been some interesting news in the video game music world lately having to do with fair use and copyright. Having dealt much with music licensing for Hideo, I have started to learn bits and pieces about copyright law, in addition to forming my own opinions on the subject.
I’d rather not write another opinion on who might be in the right in this particular case. Instead, I’d like to illustrate an amusing possible scenario that came up while I was discussing this with Stephen Escobedo.
One of the points of contention here is about art itself and derivative works. The second article I linked to quotes a commenter, “Saying that all art is derivative in some way is very nebulous.”
That got me thinking: How would you assert that a particular piece of art is completely non-derivative? You would be asserting that that artist’s entire life experience—everything she has ever seen, heard, felt, smelled, or tasted—had absolutely no bearing whatsoever on the art she created.
There would have to be some sort of primal source of creation that lies entirely outside of the human experience, with no connection whatsoever to anything else ever created, which you would then have to tap into in order to create non-derivative art. Remember, too, that you have to keep out of your creation all things you have ever experienced, otherwise it could still be considered a derivative work, could it not?
This sounds like we’re talking about some kind of god now. If we assume that this god created our universe, we can also say that all art is based on this god’s creation. What happens, then, if this god decides to sue all the artists in the world? Imagine if this happened and this god won—all “art” would then have to cease, legally.
This is not nebulous at all, as the above quote suggests. It seems quite clear that all art is absolutely derivative. Why, then, does it not make sense that we should all be paying royalties to the aforementioned god?
In reality, artists synthesize their experiences and those of others to create something else that is based on them, and that synthesis is what presumably holds the real value—that is what makes it art.
Copyright was intended to promote the arts by granting creators a temporary exclusive right to their work. Recently, the copyright debate has been transformed to be about something else entirely: intellectual property, which is less of a temporary exclusive right and more like a permanent ownership. Taken to the extreme, this idea essentially states that you own all possible uses and derivations of the original work you have created—it is your property, and you get to exclusively control how it is used, forever. Were this really the case, why would any new art ever be created? You can simply keep selling that thing that was created by your great great great grandfather 100 years ago, since the family owns it still.
If taken to the other extreme, and there were no exclusive rights to your works, how could one make a living by creating art? Others could create their own exact copies of your work and sell it as their own!
It seems that a middle-ground would be more suitable to the overall goal of promoting the continued creation of new art. In the coming years, I sincerely hope we can do a better job of understanding and finding that balance.