Voegtli, Naomi A. "Rethinking Derivative Rights" Brooklyn Law Review 63. 1213 (1997).

 

Voegtli makes a very strong argument for a new interpretation of the right to create derivative works, basing her analysis of the problem not only on legal knowledge, but also on art criticism.  She cites many important artworks that have used appropriated content - Warhol's Campbell's soup can and Brillo box, Duchamp's "readymades," and the writings of Shakespeare and T.S. Eliot; in the current climate of cease-and-desist letters, licensing fees, and multi-million dollar lawsuits, Voegtli claims, there is no room for this type of creation.  She cites many reasons that broadly interpreted derivative rights are counterintuitive to the spirit of copyright; in her words, they "inhibit socially beneficial creative activities, result in a reward system in which the size of the reward has little to do with the amount of labor put in to create the work, grant protection of exploitive use even for works with little personality interest, ignore the true nature of authorship, limit democratic discourse, and frustrate people's reasonable expectations with respect to copyrighted works."  She then moves on to discuss new standards that could be put into effect, allowing for a more logical take on the rights to derivative works.

 

Voegtli's article is very useful in the way that it carefully balances art history and criticism with copyright law; she carefully juggles information relating to Pop Art, semiotics, rap music, the 1976 Copyright Act, postmodernism and fair use standards, all in the same article.  This is a very valuable perspective on copyright issues; by having a background knowledge in art as well as legal matters, she actually is trained to make the aesthetic judgements required by copyright law.