The sheer number of recent lawsuits and controversies concerning various forms of copyright infringement—ranging from film scripts and art to pop music—indicates that ‘intellectual property’ and the profits to be gained from it are hotly contested. Stars like Michael Jackson regularly have to defend themselves against accusations of having infringed the copyright of artists they have probably never heard of; though the cases are often far-fetched, there are enormous sums at stake. It is becoming increasingly difficult for many serious artists to work without being completely submerged by legal proceedings. Some sort of appropriation of pre-existing material is, of course, integral to many forms of contemporary cultural practice, but these are increasingly under pressure from armies of lawyers. In the field of music, controversies over samples can be especially stifling for bands or artists without the backing of large corporations with specialized legal departments. The cultural implications of this development are far-reaching. The band Negativland, who are actively involved in the current discussions on sampling and copyright, have noted that ‘cultural evolution is no longer allowed to unfold in the way that pre-copyright culture always did. True folk music, for instance, is no longer possible’, since folk music thrived on the free re-use of melodies and words.footnote1 Video artists and filmmakers—like Jean-Luc Godard, whose Histoire(s) du Cinéma consists in large part of historical film footage—have to deal with similar problems: daunting sums have to be paid for every snippet of audio-visual material.

The concept of ‘fair use’ of copyrighted material for private, scientific or artistic purposes is under threat. Copyright is in fact one element of a wider, increasingly integrated field referred to as ‘intellectual property’, which also includes trademarks and patents. Furthermore, in the realm of computer software and websites, intellectual property rights are now often guarded by draconian user contracts; paying subscribers to the website, for example, must sign an agreement which states that they can in no way retransmit information from the articles and data they pay for.footnote2 However, copyright law is still predominant where the right to use music, pictures or text is concerned. In 1997 Mattel mounted a legal challenge against internet artist Mark Napier’s Distorted Barbie project, considering his altered images of the doll an infringement of copyright. More bizarrely, Warner Brothers’ legal department has harassed children who had their own Harry Potter fan pages on the internet. Everywhere users are being pressed into becoming passive consumers.footnote3 Even the private duplication and non-commercial distribution of MP3 audio files has led to huge court cases.

Copyright law thus seems to be at the service of multimedia corporations rather than working for either artists or the public. It has evolved in such a way as to fully participate in the new regime of intellectual property, stifling criticism, parody and creative re-use of copyrighted material. In the current climate, virtually every form of quotation and appropriation is regarded as theft, or at least suspected of being so until proven otherwise. We have reached a strangely archaic state of civilization, where the ideal of emulation has given way to the taboos of copyright—as if Barbie and Harry Potter were images of gods guarded by a caste of priests, and to make unsanctified use of them were blasphemous. Contemporary art and theory may have renounced the Romantic–Modernist cult of originality, but it has now been restored in law.

Perhaps a counter-attack against the dominant legal perspective could take the form of an ironic appropriation of its vocabulary. Why not maintain that theft is an essential part of any culture that wishes to remain dynamic? An evolving and self-critical culture is unthinkable without an art of theft as one of its constituent elements: quoting and appropriating is a way of manipulating material and introducing different meanings. The very fact that artistic theft breaks through the privatized monads that make up contemporary society leads to unease within corporations; Mark Napier may have had a point when he noted, after Mattel had exerted legal pressure to have his project removed from the web, that ‘their attack is grounded less in profit than on preserving the fiction of Barbie’, adding—rather optimistically—that ‘if her meaning is distorted, she will cease to exist.’footnote4

Part of Romanticism’s bequest to modern culture was the notion that the authentic artist creates in a state of complete autonomy, like Mother Nature. By contrast, the classical tradition in art—from the Renaissance to the eighteenth century and into the nineteenth—acknowledged the importance of theft as an element of emulation or imitation, which was itself a cornerstone of (Post-) Renaissance art theory. The most important late defence of this doctrine is to be found in Joshua Reynolds’s sixth Discourse on Art (1774), in which he reminds his audience that ‘it is vain for painters or poets to endeavour to invent without materials on which the mind may work, and from which invention must originate. Nothing can come of nothing.’footnote5

For the most part, Reynolds speaks of imitation in a general sense: learning from the careful study of Old Masters. There are also, of course, more concrete ways of imitating, and Reynolds admits that the direct lifting of ‘a particular thought, an action, attitude, or figure’ from someone else’s work might be open to the charge of plagiarism. However, such a practice will be justified if the outcome is good, or perhaps even superior to the original work. And while Reynolds gives the artist carte blanche only with regard to ancient art, because ‘the works of the moderns are more the property of their authors’, he still advises students of the Royal Academy to plunder the ‘moderns’ as well, as long as they try to create a new work of art with what they have pilfered.

Such imitation is so far from having anything in it of the servility of plagiarism, that it is a perpetual exercise of the mind, a continual invention. Borrowing or stealing with such art and caution, will have a right to the same lenity as was used by the Lacedæmonians; who did not punish theft, but the want of artifice to conceal it.’footnote6