I am copying you, can you tell? By Mathilde Pavis

In the particular case of derivative works, two sets of copyright coexist within the same physical piece of work, as the piece is considered “original” enough to stands on its own despite the re-use of a previous work. In the same way, an independent work can be inspired by a previous work – or is inherently – and still give birth to a brand new copyright protection. The inspired artist will have absolute control over his work with no regard to the inspiring artist’s wishes unlike in the situation of a derivative work. There is little difficulty in conceiving the two artistic approaches as being distinct providing that the fine line between the situation when a previous work is re-used or a mere source of inspiration can be traced. The practice is never as clear as the theory would like it to be and therefore will always leave it the judges to deal with the grey areas that may rise. However, the practice offers the useful criterion of visibility to help judges deciding whether a previous works has been re-used or a source of inspiration . Indeed, the presence in whole or parts of the previous work in the new work is a useful evidence of re-use. The degree of visibility of the previous work integrated into the new work coincides with the distinction derivative between derivative work and source of inspiration. The more visible the previous is the further the new work will swing towards qualifying as a derivative work, and vice et versa. Additionally, the clarity of the artist’s acknowledgement of having used a previous work to compose his own work should coincide with the visibility of the former in the latter. As an example, if a red cube were to be a copyrighted work, a painting made of red cubes and blue cubes would probably qualify as a derivative work, the previous work being obviously apparent in the composition of the second. On the other hand, if the painting was made of a blue cube overlapping a red cube so much so that it only thing visible is a purple figure, one might guess that to obtain a such colour and figure the artist did use a red cube but still cannot see it. The red cube, or previous work, is invisible. In the first example, the artist cannot deny the use of the previous work; in the second he can only say he was, at most, inspired.

What would happen of the visibility of re-using and clarity of acknowledgement of re-using were not to coincide with each other anymore? Is that even possible to claim having re-used a work without the previous work to be clearly visible? Should the work be qualified as a derivative work on the basis of the artist’s claim or shall the copyright law sticks to what it sees, i.e. the absence of similarities between the two works and refusing the qualification, leaving to the artist the mere mention of a source of inspiration to connect with the old piece of work. One may ask: “How often does it, the non coincidence of visibility and clear acknowledgment, happen anyway?” More often that one would think, especially within the context of Contemporary Art and the will of changing the criteria of aesthetic. The dancer Caroline Bowditch is in that particular situation when performing Love Games of Joan Cleville; a choreography not designed for her body nor for her disability. She will change the choreography for two ranges of reasons. First, the original work did not include the presence of a wheelchair, the presence of her disability, the steps she cannot perform need to be modified or deleted. Secondly, in order to be faithful to the spirit and emotions of choreography despite her first set of changes she will have to adjust the choreography. Caroline will edit and adjust so much that her own performance can qualify as an independent work, the previous work being dissolved in her own, like the red cube in the blue one. Some may be tempted to argue that such situation is only an anecdote and is caused by the performers’ disability. First of all, Disabled Dance is not an anecdote anymore, secondly a similar situation of reversed acknowledgement and visibility of re-using previous works can be found in other fields than Disabled Dance. Indeed, we can easily draw the same parallel with Pablo Picasso’s artistic approach in his interpretation of Las Meninas . If a visitor was to see the paintings one after the other in a museum, the chances that he would be struck by the resemblance of the two works – Picasso’s and Velasquez’s- are fairly slim. If a visitor was to see the same paintings next to each other he would probably note the vague similarities, similarities that are of the same degree as that of Caroline Bowditch‘s in her version of Love Games.
Both artists, Caroline Bowditch and Pablo Picasso, acknowledge and claim a strong derivation of their work from previous works, although, an untrained eye might not see the previous work in the new one apart from the latter being a mere source of inspiration. Caroline’s and Picasso’s approaches work is the same. Could they be put in the same category? Is Disabled Dance a new or another form of Cubism the Dance community would experience? Could Bowditch be a modern Picasso? She is certainly not less talented, not less beautiful in her creation and obviously just as challenging for the audience of her time. If they were to share the same artistic category, which one is it? Would it change the way Copyright apprehends Disabled Dance?

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