On Inspiration, Theft, and the Doctrine of Unclean Hands

As you may know, I am not a fan of "mashup" art. Incorporating pre-existing things into imagery in an ironic, amusing, or artistic way, sure. One of my favorite artsy photos is a fun picture I took of a model staring into a dry-cleaner's window at night, with the neon sign and the tattered flyers posted all over it framing her and providing interesting visual and textual elements.

But mere collages, y'ask me, are not particularly creative. They can be artistically arranged and esthetically pleasing, but they are not new works. At best, they are highly derivative works. At worst (and at usual) they are mere rearrangements.

And so we come to the case of one Mr. Thomas Allen.

Mr. Allen, whose work is visible at Thomas Allen Online has as one of his major photographic interests clever little pastiches he makes by cutting up the covers of pulp novels and arranging and lighting the bits.

Mr. Allen feels that he has been wronged (actually using the phrase "copyright infringement" at one point) by an ad agency which more or less admits that it used his technique as inspiration for some dummy ads they made to enter a contest. See more information at: Thomas Allen Online: Theft.

Now, there are two problems with this. First, Mr. Allen hasn't, so far as I can tell, posted any examples of a blatant copy of any of his images. You cannot copyright style. (You might patent a method, but to my knowledge Mr. Allen has not done so.) Absent a direct copy, or a copy which rises to the level of derivative work, there is no copyright infringement here. His use of the term indicates he does not understand what it means. That's not a failing on his part in and of itself: lots of people, even lots of lawyers, don't understand what copyright infringement requires. But if you do not know what something is you should not accuse people of doing it. I hope the logic of that is evident to all.

The second and far greater problem is that Mr. Allen's hands are not clean: his moral outrage is fatally tainted by the fact that he himself is merely repurposing the work of other creative minds. Somebody sat and painted that picture, putting far more work into it (not relevant for legal purposes but, I think, morally relevant) than mere scissorwork and lighting. Somebody owns the copyright to it. Mr. Allen, absent any demonstration to the contrary, is using it without permission, without color of right. Nothing has been done to Mr. Allen that he has not already done to someone else, only more so. In the law we have a principle called the Doctrine of Unclean Hands: it states that he who comes to court seeking equitable treatment must himself have acted equitably. In other words, his own hands must be clean.

Mr. Allen's hands are as stained as those of his alleged offenders, and therefore a moral person must simply say, "Live by the mash-up, die by the knock-off," and walk away with a weary smile at the foolishness of the world.

It is interesting to note that Mr. Allen's blog requires comment approval: he approved my comment asking to see some of his copyright licenses, but then removed it a few hours later (presumably when he figured out I was making fun of him.) Mr. Allen, should you happen to read this, you are welcome to comment here and so long as your post is not mere invective, rest assured it will remain.

M