Blogger at www.Bollier.org (no longer at OntheCommons.org). Co-founder of Commons Strategies Group. Activist and writer about the commons. Author of Silent Theft, Brand Name Bullies and Viral Spiral.
| by David Bollier
Oops, don’t look too closely, or you might catch a glimpse of the collective nature of creativity! That’s the message from an article in yesterday’s The New York Times, “Hi, Gorgeous. Haven’t I Seen You Somewhere?” (August 28, 2005; registration firewall). The piece, by Fred A. Bernstein, looks at the remarkable similarities between buildings designed by different architects. Are they cases of piracy, creative derivation or simply our shared zeitgeist expressing itself?
Does Randall Stout’s Art Museum of Western Virginia (top) look like a copy of Frank Gehry’s celebrated Guggenheim Bilbao? Did David M. Childs, an architect at Skidmore, Owings & Merrill, steal a design from an architectural student, Thomas Shine, resulting in an unusual lawsuit charging copyright infringement? (For more on _Shine v. Childs and links, see Donna Wentworth’s post at Copyfight and some of the links she provides, such as William Patry’s copyright blog and photos in Architectural Record.)
The question of piracy/imitation/copying may be interesting, but the very inquiry avoids a deeper inquiry into some basic premises. Is copyright protection for buildings really an appropriate public policy? Architects and real-estate developers hardly need copyright protection in order to have the incentive to build new buildings, as Wentworth notes, because architects:
…have other ways of protecting their authorship interests: Architecture clients need full buildings designed, not just pictures of facades; architects can complain publicly about others who fail to give credit for inspiration, lowering the reputation of someone who copyright law might say has only used an unprotectible idea [see Ellickson]; and the great designers aren’t just re-selling their last-years’ designs in any event.
Ellickson in this case is Robert Ellickson, the Yale law professor who wrote a classic, Order Without Law: How Neighbors Settle Disputes, recently reprinted by Harvard University Press. The book deals with the subtle ways in which social norms operate, often more efficiently and effectively than formal legal remedies or market mechanisms.
Another overarching point that deserves recognition is the collective dimensions of nearly any creativity: As Fred A. Bernstein elaborates in his article:
Another reason accusations of plagiarism rarely make it to court is that architecture, despite the romantic image of the solitary genius, is largely a collaborative pursuit. Principal, project architect, project designer and outside consultants of all stripes contribute to a design. All the while, young architects move from firm to firm, spreading ideas and sometimes eventually opening their own, competing offices. As for student architects, well, just because they don’t get paid for their work doesn’t mean it never enters the commercial arena. “There’s so much rich activity going on at the schools,” said Bill Sharples of the Manhattan firm SHoP/Sharples Holden Pasquarelli, “it’s hard not to be influenced by it.” With so many influences and so many echoes, authorship is rarely a simple question.
bq. Markus Dochantschi, a New York architect, concurred. “Think of Rauschenberg and Jasper Johns,” he said. “Or Cezanne and Pissarro, who quite openly responded to each other’s work. In art, that’s considered creativity, not plagiarism. If there were more of a communal sprit in architecture, people wouldn’t see this as a problem.”
The communal spirit is precisely what drives “originality” in so many creative endeavors — folk, jazz, blues, hip-hop, not to mention fast-moving genres like apparel design and (ahem) blogging. IP law has tricked us into thinking that individual genius is the only thing that drives “originality,” when in fact it also has a lot to do with its host community. As an OTC post by Lewis Hyde once asked, could Bob Dylan have emerged without Woody Guthrie, Pete Seeger, Joan Baez and a whole raft of others? Not likely. So why should he or any other copyright holder have such bitter complaints when someone is inspired (even in startlingly similar ways) by them?