December 2, 2010
Originality, Imitation, and Copyright
“He who imitates must have a care that what he writes be similar, not identical”- Petrach, Le familiari, XXIII (14thc)
The foundation of the copyright law is built on the principle and idealistic American value of originality. Recognized as a Western ideal and value in the 18th century, originality is culturally constructed and accepted, but not truly defined, as an aspect of a created work that is deemed new or novel and is distinguishable from reproductions, copies, or other derivative works. In law, originality has become an important legal concept with respect to intellectual property, where creativity and invention have manifest as copyrightable works. Therefore, the institution of the copyright law protected originality by deeming a piece of work to be paramount while reducing all derivatives to copies or imitations. However, the extent of protection that the copyright law carries is limited, for the copyright law does not protect ideas, themes, or subject matter, only craftsmanship or form (Alfrey, 2000). As a result, under the law two identical pieces of work are able to claim protection, provided the effort behind each work is discernibly independent of one another. There is no statutory definition of infringement, just as there is no statutory definition of originality.
However, copying, even if unintentional, can still surmount to a conviction of infringement. Proof must then “rely on circumstantial evidence, which requires scrutinizing the manner and sequence in which the artist worked” (Alfrey, 2000). In other words, the perpetrator must supply sufficient evidence showing that no intention was made to copy the “essential quality of a particular work” causing an unfair advantage of effort of work from the predecessor (Alfrey, 2000). Yet the legality aspect of originality does not linger on similarities and differences in artistic merit, but focuses solely on the illicit reproduction and replication of style and form. The legal system differentiates imitation from copying by delineating the two into separate actions. Petrarch an Italian scholar, poet, and “Father of Humanism” best compares the two forms of action in his piece Le familiari when he writes:
“He who imitates must have a care that what he writes be similar, not identical . . . and that the similarity should not be of the kind that obtains between a portrait and a sitter, where the artist earns the more praise the greater the likeness, but rather of the kind that obtains between a son and his father . . . we (too) should take care that when one thing is like, many should be unlike, and that what is like should be hidden so as to be grasped only by the mind's silent enquiry, intelligible rather than describable. We should therefore make use of another man's inner quality and tone, but avoid his words. For the one kind of similarity is hidden and the other protrudes; the one creates poets, the other apes.” (Petrach, Le familiari, XXIII)
Imitation is distinguishable from copying in that it allows the imitator a certain amount of freedom to move in any artistic direction desired as long as he does not directly quote from the from a specific piece of work without acknowledgement. In contrast, the action of copying is a form of direct reproduction with little to indistinguishable differentiation from the original piece of work. The ancient philosopher, Plato, created a mythical being he called the simulacrum (Plato, 1984). Found within the lowest ring of in the hierarchy of the arts of producing a work, the simulacrum is able to re-image itself, in an attempt to double any figure it chooses. The simulacrum, however, is not able to completely model or replicate itself exactly like the first figure, but only able to portray a “distant semblance”, so that the doubled figure seemingly looks copied but is different or imitated and thus...