The creative mind is amazing. It constantly listens and observes, then neatly tucks information away. Sometimes bits and pieces surface later for a campaign idea, or we wake up at 3AM with a lyric or musical hook spinning around in our heads. Or maybe we never use a specific piece of observation again. The subconscious is full of influences: memories, art, music and more that build over a lifetime. Those things guide us to our favorite color, our distaste for Comic Sans and our love for Vanilla Ice.
So where is the line between inspiration and infringement? When we pen a screenplay, concept an ad, write a song or paint a painting, how do we know we’re not directly copying someone else’s work? The short answer is we often don’t. Yes, we’re lucky to have an expert legal army giving us their opinions. But before the attorneys and musicologists weigh in, the best work is conceived and created without limits and boundaries, and consciously or not it’s full of borrowed inspiration.
In my “weekend rock-star” experience, when I bolt out of bed in the middle of the night to get that melody played before it’s lost forever, I’m not thinking about the song I heard my kids listening to on the way to school. However my brain may be melding 12 other songs I’ve heard that day into an echo of dreamy creativity. The same way a color palette triggers a design decision, or the words of “I Have A Dream” (which is copyright protected, by the way) inspire the content a writer pens. Conscious “willful infringement” of another’s creation is, in my creative opinion, much less common than recent news headlines and court decisions might lead us to believe.
The Plot Thicke-ens
According to articles I’ve read, the jury deciding the recent case of Pharrell Williams/Robin Thicke v. Estate of Marvin Gaye compared sheet music of the two songs, as well as heard partial/stripped-down song versions of chord progressions or melodies. In addition, musicologists for each side offered opinion and analysis that was often objected to by opposing lawyers. Sometimes comparisons happened hearing as few as four notes, or by playing the bass line from one song and vocals from another. Interestingly, it seems the jury might not have even deemed the whole song as an infringement, but only parts or components of the song. While some think this case has little bearing on the future of creativity (because it’s a jury decision vs. a precedent-setting court opinion), I disagree. In my view, the result potentially swings the door open wide for legal action based on the inspiration for an idea (Williams & Thicke made no bones about Marvin Gaye being a huge inspiration) instead of actual conscious infringement. Yes, there is a thing called subliminal infringement, but that’s a whole other column.
Years ago (let’s just say grunge was big), I had a professor who railed against what he saw as an overly litigious media community of the future. Way back then, he foresaw that inspired works of some would turn to dollar signs for others. Where estates and inheritors discount the source of their benefactors’ creative inspiration, but strongly “defend” copyright they had no part in creating. Regrettably, it’s a vision we see playing out more and more today. It’s funny; I think most artists understand how similarities happen because they’ve been there themselves. I also think they tend to be very gracious if a situation does arise — think Tom Petty & Sam Smith. However, as the line of ownership draws farther away from its creator, that graciousness more often than not turns to a money grab and a lawsuit.
Anything New Under the Sun?
Almost nothing in life — much less our industry — is truly new. Creativity begets creativity, ideas build on ideas and inspiration never happens in a vacuum. When those “bits” of memory are cobbled together and brought to bear in the birth of concepts, we’re invariably borrowing from those who have come before us. Whether it’s David Ogilvy, Orson Welles, Mozart or Mike Hughes, we’ve all stood on the shoulders of someone else to get where we are and do what we do. Creativity isn’t an island, and certainly not a planned event. I don’t hear many people saying, “Hey, I’m going to have an idea at 10:30 this morning, so please don’t disturb me.” Creativity is lightning that every once in a while makes it into the bottle.
So while we all have to be responsible creatives, producers, account people and clients, it’s important to remember that ideas are rarely the unauthorized use of someone else’s efforts. We should always run our ideas past appropriate business affairs or counsel for their expertise and opinion. We can only hope recent events don’t unleash an even bigger frenzy of lawsuits and settlements. I think we can all agree that innovation, risk-taking and creativity are the lifeblood of our industry, and nothing stifles those faster, or more permanently, than fear.
Brett Alexander is VP/executive broadcast producer for The Martin Agency in Richmond, Virginia.
