He who imitates
must have a care that what he writes be similar, not identical
. . . and that the similarity should not be of the kind that
obtains between a portrait and a sitter, where the artist earns
the more praise the greater the likeness, but rather of the
kind that obtains between a son and his father . . . we (too)
should take care that when one thing is like, many should be
unlike, and that what is like should be hidden
so as to be grasped only by the mind's silent enquiry, intelligible
rather than describable. We should therefore make use of another
man's inner quality and tone, but avoid his words. For the one
kind of similarity is hidden and the other protrudes; the one
creates poets, the other apes.
-- Petrarch, Le familiari, XXIII (14thc) 
of art "are not the product of single and solitary births;
they are the product of many years of thinking in common, of
thinking by the body of the people, so that the experience of
the mass is behind the single voice"
Woolf, A Room of One's Own
At the heart
of copyright law lies the elusive ideal of originality -- and
its corollary, plagiarism. Originality and plagiarism are not
opposites but are closely related and both are linked to the
idea of genius or imagination.
and culturally, originality and copyright law are very complex
and raise some seminal issues which are largely ignored. There
is no established discourse on the relationship between visual
culture and copyright law, yet the expansion of a litigious
mentality has begun to affect it, not least within the universities.
Some fundamental questions should underpin any consideration
of this subject:
So it follows
that using the same sources of ideas is permissible: two works
can claim protection, even if identical, provided the effort
behind the work is demonstrably independent. There is no statutory
definition of infringement, just as there is no statutory definition
of originality -- yet both must be proved if a claimant is to
can be unintentional and yet still amount to infringement. Proof
relies on circumstantial evidence which requires scrutinizing
the manner and sequence in which the artist worked. Such evidence
must show that the opportunity for copying existed and was taken;
and that the copying was "substantial" and "material"
-- that is, some essential quality of the work had been copied.
The issue is whether there has been unfair advantage of the
creative effort of a predecessor, and despite the effort to
avoid subjective judgments, it is evident that a level of subjectivity
infiltrates the tribunal.
legal world is indifferent to similarities or differences, or
aesthetic merit -- it is only concerned with unlawful copying
of style, and thus its criteria is much more loosely applied
than that used within the art world. Law and art speak quite
is that plagiarism permeates everyday life. It is not only accepted,
it is encouraged and integral to creative life. We depend on
it, for we learn through copying others and
we use it to reinforce social bonds. Thus it is the basis of
any art or design training. Yet paradoxically notions of originality
are also entrenched in the creative process, as an ideal, no
matter how unrealistic: "No man creates a new language
for himself."  -- but the cult of
individualism decrees that he must try.
if it exists at all, is not an absolute; its identification
is subject to a scale of relative values and knowledge, it is
conditional to time and place. It must be measured against its
In literature and in the visual arts, from the Renaissance onwards,
a canon of models encouraged artists to engage in copying or
imitatio primarily from other artists' works. It triggered a
contentious debate which has continued until now. For some commentators,
imitation combined assimilation of a precedent with interpretation.
Through a series of considered acts, rather than a codified
set of rules, the 'essence' of the subject was captured and
re-rendered. This was the quality that the English 18th century
painter, Sir Joshua Reynolds, recognised in the work of Raphael.
In the eyes of Reynolds, Raphael affirmed the value of copying
works of art as a route to originality.
Thus a distinction
is drawn between copying and imitation -- for imitation requires
a degree of generalisation which avoids the risk of direct quotation,
permitting the imitator to move, in the words of Gombrich, from
"pastiche to the free mastery of style". 
Against such a standard, copying is defined
as a form of mechanistic reproduction. Through this the master's
style was assimilated, equipping the apprentice with the skills
required of an assistant within the studio production. Individuality
would be inappropriate -- even Leonardo used his master's drawings
in his compositions, and declared "that the closer a painting
was to "the thing imitated, the better." 
Even Michelangelo was not beneath faking old drawings and carvings.
was also practised as a means of reproduction: the Van Dyck
equestrian portrait of Charles 1 (dated 1633; Her Majesty the
Queen's collection) was copied at least 27 times by Van Dyck's
assistants working to commission during the two decades after
its completion, such was its success as a propagandist image.
And plagiarism was also rife -- Ruben's portrait of Suzanna
Fourment, portrayed in a large brimmed hat and holding a feather,
spawned two centuries of imitators.
design practice until the early 20th century was heavily dependent
on formal copying. Both Cezanne and Matisse copied and openly
acknowledged their debt to other artists. Perhaps because of
this long-established tradition, plagiarism is hugely tolerated
by artists and designers of today. Few will take legal action,
perhaps because they acknowledge the common language of all
creative expression -- or possibly because the perceived loss
in financial terms cannot justify taking expensive and uncertain
a level of predictability generated by copying was an increasing
value attaching to the unpredictable. Unpredictability and eccentricity
began to be viewed, during the later 19th century, as assets
that signified genius and the result was not therefore an ordinary
commodity, but one that was superior to mere commerce. Gradually
the artist was re-positioned outside of mainstream culture and
became associated with individuality and originality -- it was
no longer sufficient to copy precedents; one was expected to
development of the cult of individualism elevates the value
of originality and, at the same time, blurs its definition.
Individualism has burdened successive generations of artists
and designers with the increasingly elusive quest for originality.
As more ideas and their expressions are generated, so originality
becomes more rare and the use of precedent more insistent and
inescapable. The increased premium placed on this by the world
of commerce has not helped to ease it.
of originality in art and design has considerable commercial
value as a selling ploy, but the reality is that copying sustains
the economy of commerce -- without it, less would be produced,
manufactured and consumed, and fewer works of art would be exhibited.
Yet another myth is created: the discriminating consumption
of mass produced goods is another expression of individuality,
on the part of the consumer.
or designer judges originality on the basis of aesthetic merit
-- that is, the particular quality of the idea expressed in
a particular way, so that idea and aesthetic are generally approached
as though they are inextricably linked, or symbiotically related.
is two systems of values, each defining originality on their
own terms, thereby diverging to arrive at innately incompatible
results. Thus the carved wooden form from which the Frisbee
mould is manufactured is deemed by lawyers to be a work of art
(sculpture), but would be regarded by sculptors as mere generic
form, an inevitable consequence of its intended function rather
than an expression of an artistic idea. In this case of Wham-O
Manufacturing Co. v Lincoln Industries Ltd. (1985) RPC 127,
where the plaintiff was the original Frisbee manufacturer, the
court found that there was sufficient originality to attract
copyright protection because a sculpture is classified as an
artistic work irrespective of its aesthetic merits -- and, one
could add, irrespective of its function. Thus the law strips
art of its cultural function and evaluates simply in terms of
its form. If it is hand carved -- as was the case with the Frisbee
form -- it must be sculpture.
has this to do with media in transition? What happens when artists
or designers are confronted with new technologies where there
are no clear precedents to follow?
As I have
already established, copying is integral to creativity. With
no opportunity to plagiarise, the imagination appears to suffer.
This, it must be emphasised, is not merely a technical-knowledge
deficit, but an absence of aesthetic standards, for historical
evidence reveals that standards are largely established by precedents.
Copying, or plagiarism, is essential to the development of cultural
richness: without it, an aridity of ideas results. However,
the risk of unintentional plagiarism increases as a direct consequence
of the unfamiliarity with new technological processes. The interaction
between the mind of the user and the mind of the software designer
is still largely unchartered territory. It is far from clear
how much computer art or computer-aided design can be claimed
to be an individual expression of an idea. Originality and imagination
are the by-words of artistic integrity and yet the application
of technological processes as a creative or reproductive tool
may stifle both.
copyright law has some place in our culture, it should be resorted
to with discretion, and treated with caution as potentially
counter-productive and repressive. It is demonstrably difficult
to arrive at a just result -- copyright law as it stands at
present is fraught with semantic and evidential inconsistencies.
Unfortunately, however, the application of new technologies
facilitates and encourages plagiarism, at a conscious and sub-conscious
level, particularly in those instances where, due to the unfamiliarity
of the process, technology leads rather than the imagination.
the creative and cognitive processes involved in designing within
a non-technological culture and those same processes involved
within the technological culture are very different. Thus the
designer or artist who draws on technology to assist in the
creative process may be unaware of these differences. Therefore
both conceptually and pragmatically there may be a blurring
of the boundaries between process and idea that fundamentally
define the creative process of an individual work of design.
Re-constructing the process may prove to be impossible, but
legal principle insists upon it. Such blurring will result in
a more elusive definition of originality where clarity should
be sought instead.
in Gombrich, E.H. Norm and Form: Studies in the art of the Renaissance,
Phaidon, 1971 (2nd edition), February 18, 2000.
Justice Story, quoted in Plagiarism and Originality, Lindey,
A., Greenwood Press, Connecticut, 1951. return
Barron, F. "Personality Studies" in Creativity, Vernon,
P.E. (ed.), London, Penguin, 1974. return
Foucault, M., The Order of Things, p.330. return
Marx, Karl, quoted in Walker, J. Design History and the History
of Design, Manchester U.P., 1986. return
Foucault, ibid. return
Petrarch, Le familiari, XXIII, quoted in Gombrich, E., Norm
and Form: Studies in the Art of the Renaissance, Phaidon Press,
Gombrich, ibid. return
Burke, Peter Tradition and Innovation in Renaissance Italy,Fontana,
1974, p. 154. return