This article discusses the role that derivative works play in the current copyright law landscape. More specifically, the author uses derivative works to make the point that current copyright law must be amended. She believes that the law too often blindly finds in favor of the original author without taking into account the way in which a derivative work came into being or what it is meant to represent. She boldly states that copyright law, “given the importance of appropriation in various fields of art and other expressive activities” is counter-intuitive. This argument will be useful for my paper, as it specifically focuses on modern, appropriation art and digital music sampling.
Voegtli states that “appropriation has been an integral part of the creative process well before the arrival of the digital technology,” pointing to artists such as Warhol and Duchamp. She traces the history of copyright law since 1709, and the ways in which derivative works have played a part. This history will be important to my paper, as I too plan to briefly document the change of copyright law over the past decade, and its implications for the future ones. She continues to discuss copyright law within the context of appropriation art, referring to Sherrie Levine, Jasper Johns, Richard Prince, and Jeff Koons, all of whom I plan on discussing in my paper. In analyzing the Rogers v. Koons court decision, she argues that “the court refused to take into account defendant’s artistic style in its fair use analysis.” She lists reasons why appropriation art has had a tough time meeting the fair use standard, as well as why they are often not considered parodies. This will be very useful, as I plan on discussing the different fair use defenses and the “artistic style defense,” and why appropriation art hasn’t been considered excusable by either of them.
The article then describes the different justifications for derivative rights, including The Economic Theory, the Incentive Factor, and the Personality Theory. I will most likely spend the most time focusing on the Personality Theory as it relates to art and sampling. She then ends by discussing different proposals that could be implemented to restrict derivative rights. These include Compulsory Licensing, the Fair Use Doctrine, and redefining the ambiguous term of “derivative work.” I will be discussing these solutions and contrasting them with alternative solutions proposed to the appropriators themselves. Which ones seem more feasible, etc?