Here’s a confession: I like creating derivative works. I mean that both in the colloquial, pejorative sense of the term, as well as the broader and more confusing legal definition of the term. According to the U.S. Copyright Act, a derivative work is “a work based upon one or more preexisting works.” Obviously there is more verbiage than that, but that’s the essence of it. To an artist, you can see why this might be a hopelessly vague definition.
Wrangling over what separates an original work from one that depends “too much” on a pre-existing work has been the subject of a number of high-profile lawsuits over the years. Off the top of my head, there was the Beastie Boys’ sampling of a jazz flute improvisation by James Newton; producer Timbaland’s appropriation of a track by obscure Finnish musician Janne Suni; and the Verve’s lifting of an orchestral arrangement of a Rolling Stones tune. In many of these sorts of cases, the outcome seemed to have less to do with musical merit and more to do with who had more weight to throw around (and/or who had better lawyers). In other words, the celebrities tend to defeat the lesser known quantities in these legal battles, regardless of which side they’re on. This ends up twisting and perverting the original intent of copyright law, stifling innovation and consolidating intellectual property into the hands of the powerful.
Many years ago a student composer I knew received a cease-and-desist regarding an electronic piece that paid homage to Michael Jackson’s music. The samples he used were so tiny and reconfigured that if you didn’t know it was based on Michael Jackson, you might have no idea. But by explicitly acknowledging it, this composer made himself a target. If it had gone to court it’s very possible he would have won the case, but the mere threat was enough incentive for him to withdraw his work. This puts the artist in a strange and unenviable position. By choosing not to cite your sources, you may escape notice, but you detach your work from a great deal of what gives it meaning. You might also find yourself feeling conflicted about sharing the work, or even betting against its success.
I don’t think it’s hyperbole to call this a culture of fear. Almost everyone I know second-guesses themselves when creating something that references the work of the recent past—and that includes nearly everything that we create. You can absolve yourself artistically by calling it a tribute or homage or parody, but this doesn’t actually protect you. It’s true that this often doesn’t stop people from creating, and it shouldn’t. (Alex Temple’s Nineteen, a collage piece that samples one hundred 20th-century works, is a great example of the kind of derivative creativity I hope to see more of.) But it does often affect what we can do with those works once they’re created. Without getting too specific, in the past it has stopped me from announcing, selling, or publicly posting recordings of certain pieces. Am I just being paranoid? Maybe. But I’m certainly not the only one.