Analytical Derivation and Amalgamative Appropriation

Since prehistoric times people have made drawings, paintings and sculptures of things around them. In fact all our creations, even our imaginations, are built or derived from things around us. But in the last fifty years, artists have increasingly had to deal with the things around them being other creators’ intellectual property.

The things that Pop artists saw around them in the 1950s, 1960s and 1970s – photographs in newspapers and magazines, industrial designs, fashion designs, comics, adverts, posters, films and television broadcasts – were the focus of not only their own but many other people’s gazes, thoughts and conversations.

By using these things in their work – sometimes appropriating them, sometimes making derivatives of them, sometimes isolating them, and sometimes combining them with something else – they expressed a sense of what tied people together, and reactions such as nostalgia, attraction, anxiety and humour.

People valued this. But in the 1960s at least one of the Pop artists, Andy Warhol, faced lawsuits over copyright infringement. And legal action, or the threat of it, continued to be a problem for those who wanted to use other people’s work in creative ways in the 1970s, 1980s, 1990s and 2000s.

In 2013 the United Nations Special Rapporteur in the field of cultural rights, Farida Shaheed, questioned whether nations were achieving the right balance between protecting the interests of intellectual property owners on the one hand, and protecting other people’s creative freedom by allowing certain creative uses of intellectual property on the other.[48]

She encouraged governments to review their intellectual property laws, taking into consideration their ‘obligations to respect, protect and fulfil the right of every person to freedom of artistic expression and creativity’.[48]

Acting on both that and earlier independent reviews,[49][50] the government of the country I live in, the UK, made changes to its copyright law.[51] Since 2014, an exception to copyright ‘for the purposes of caricature, parody or pastiche’ has enabled anyone working in the UK to use copyright work for those purposes, without permission from copyright owners, or performers featured in the copyright work.[52][53] (There are still ‘fair dealing’ rules; see the UK Intellectual Property Office’s website for guidance.)[54]

I’m relying on that exception, and the relevant international human rights law,[48] as I share the pastiches in this section.

The problem with UK copyright law now, however, is that the exception for pastiches and parodies protects amalgamative appropriation (the act of taking something to combine it with something else), but the exception for caricatures only protects one kind of analytical derivative: UK copyright law does not provide for analytical derivation in general (the act of deriving something from something by analysing it).

If you work in the UK, you’re allowed to sell an individual caricature that’s based on someone else’s photograph, without permission, but you’re not allowed to sell an individual drawing, painting or even sculpture that’s based on someone else’s photograph, without permission, if your artwork isn’t a caricature – you have to additionally combine it with something.

It may be easy to take that additional step, but it’s unfair that only caricaturists are free to isolate analytical derivatives.

Any freehand derivative artwork is the result of someone using his or her knowledge and style to mentally break down the subject of someone else’s work, at least to the extent that the parts considered insignificant are excluded, and the parts considered significant are included and accentuated by the exclusion of everything else.

A derivative maker transforms a source work into his or her unique analysis.

I think there should be an exception to copyright for analytical derivation in general.

Construction from Thought

Sometimes I draw
To think things through,
To see what I know,
And what I don’t know,
About a particular thing
At a particular time;
I know in drawings
I leave a record of thoughts behind.

Amalgamation

After researching, analysing and thinking about the human body for several years, I made experimental drawings to try to unite everything I’d learnt.

Up until this stage I’d been aiming to make a canon of proportions for male figures as well as one for female figures. But now I decided to focus exclusively on the female.

The aim of The Queue was to align the masses of the body from the side view, and the aim of Experimental Canon (Side) and Experimental Canon (Front and Back) was to determine the positions of the main pivot points.

I drew body parts on transparent sheets so that I could move them about over graph paper to see how they looked in different positions with different pivot point positions. I took some measurements from X-rays. And I used anthropometric data relating to flexed body parts. For example, I used NASA’s ‘Buttock–knee length (seated)’, ‘Buttock–popliteal length (seated)’, ‘Knee height, sitting’ and ‘Popliteal height’[47] when I was positioning the body parts in Experimental Canon (Side).

Several aspects of my design were drawn, directly or indirectly, from the works of Albrecht Dürer, who lived from 1471 to 1528: cross sections similar to some of those given in my ‘Design’ section were given first by Dürer, in his Stereometric Man: 13 Cross Sections of the Body, then by Paul Richer[44] and then by Victor Pérard;[55] I took the idea of positioning a pivot point at waist height from Dürer’s Standing Female Nude (Constructed) and Nude Man Holding an Orb (Constructed). I drew from his Stereometric Man when I was working on the feet, and from his Right and Left Hand: Top View and Profile when I was working on the hands.

The feet and hands are complex bodies in themselves. For the positions of the external landmarks of the feet, I relied on measurements that I took from an average-height life model and a lifecast of another average-height model; for those of the hands, I measured the same models and used some anthropometric data.

To find the positions of the pivot points of the feet and hands, relative to external landmarks, I studied and measured my own feet and hands, flexing and extending the digits. Then I positioned the pivot points in relation to the female proportions.

I also studied and measured a life-size model of a skeleton, to find the positions of the pivot points of the elbows and wrists.

References

[44] Richer P. New artistic anatomy: female morphology. Trans. and ed. Benham AM. Benham Books; 2015.

[47] United States. National Aeronautics and Space Administration; Webb Associates (Yellow Springs, Ohio). Anthropology Research Project. Anthropometric source book. Washington, D.C.: National Aeronautics and Space Administration, Scientific and Technical Information Office; 1978.

[48] The Office of the United Nations High Commissioner for Human Rights. Human Rights Council. Report of the Special Rapporteur in the field of cultural rights, Farida Shaheed: the right to freedom of artistic expression and creativity. 14 March 2013. Available from: http://ap.ohchr.org/documents/dpage_e.aspx?si=A/HRC/23/34 [Last accessed 13 August 2016].

[49] Gowers A. Gowers review of intellectual property. 6 December 2006. Available from: https://www.gov.uk/government/publications/gowers-review-of-intellectual-property [Last accessed 13 August 2016].

[50] Hargreaves I. Digital opportunity: a review of intellectual property and growth. 18 May 2011. Available from: https://www.gov.uk/government/publications/digital-opportunity-review-of-intellectual-property-and-growth [Last accessed 13 August 2016].

[51] United Kingdom. Intellectual Property Office. Copyright, Designs and Patents Act 1988 (as amended). Available from: https://www.gov.uk/government/publications/copyright-acts-and-related-laws [Last accessed 13 August 2016].

[52] United Kingdom. Intellectual Property Office. Exceptions to copyright: guidance for creators and copyright owners. October 2014. Available from: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/448274/Exceptions_to_copyright_-_Guidance_for_creators_and_copyright_owners.pdf [Last accessed 13 August 2016].

[53] United Kingdom. Intellectual Property Office. Exceptions to copyright: education and teaching. October 2014. Available from: https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/375951/Education_and_Teaching.pdf [Last accessed 13 August 2016].

[54] United Kingdom. Intellectual Property Office. Fair dealing. In Exceptions to copyright. Last updated: 18 November 2014. Available from: https://www.gov.uk/guidance/exceptions-to-copyright [Last accessed 13 August 2016].

[55] Pérard VS. Anatomy and drawing. New York: Pérard; 1928.