Should an illustration of a dinosaur skeleton be considered as functional as a pair of jeans?
Watching this TED Talk with Johanna Blakley recently discussing copyright and fashion, she points out that some creative industries have little or not copyright. The world of fashion. Automobile design. The tattoo design industry. The reason, Blakley points out, is that when copyright laws were being written and precedents set, fashion was considered to be a utilitarian industry. Would you want to have to pay royalties to the inventor of the shirtsleeve-cuff, she asks?
This is different than artistic illustration or literary works by leaps and bounds. Copyright in the arts is generally robust and people are very protective over their designs. For a quick recap of copyright, generally, under the Berne Convention any created artistic or literary work is under copyright to the creator the moment it is made. Ideas are not under copyright ("I have this idea for a statue using that big piece of Carrarra marble no one wants...") but the finished works ("ta-da! David!") are.
Trademarks are something different altogether - they can be a logo, say, and Blakley points out how many fashion brands plaster their wares with the company logo. And of course, plenty of haute couture is much more artistic than functional.
I was considering this in the context of science illustration. Last year, before the Scientific American Blog Network launched, my co blogger Kalliopi Monoyios wrote an excellent piece about the Gregory S. Paul dinosaur skeleton controversy, Art in the Service of Science: You Get What You Pay For. In brief, noted paleontology illustrator Gregory Paul posted a rant online about people mimicking his drawings of dinosaur skeletons, side view, imposed on a black silhouette of the living animal.
Kalliopi brought up an excellent point that dovetails nicely with Johanna Blakley's discussion. When describing another illustrator's rendition of Paul's style for a different fossil species, Kalliopi said,
"From a strict copyright perspective, this is illegal. Paul spent years developing this technique and his genius at combining disparate information into a clean, concise illustration should be rewarded with piles of work and mountains of cash (cue maniacal laughter, all the way to the bank.) From a scientific perspective, Paul invented a convention, and an invaluable one at that. It’s a convention that should be used widely to standardize the discourse that would otherwise be a jumble of hapless musings on fossil fragments scattered across the globe. Without convention, much information (and thus, progress) would be lost in the ensuing chaos."
It's an excellent point: when does a scientific illustration - edited for clarity, designed to convey information, reflecting real life and its explanatory theories - when does a scientific illustration become so useful, it crosses a threshold and should be considered as functional as fashion? So functional that copyright law should (maybe) cease to matter in the face of scientific utility?