Hush-Hush: Silent Echos or Artists Under the Influence?
One of those common myths of UK music industry is that under something termed ‘fair use’ anyone can legally 'sample' a copyrighted song (as opposed to a royalty free one) without permission as long as the excerpt recorded is shorter than 30 seconds. Whilst aspects of this might apply to certain rights of replaying short clips of commercial music in their original state, this is an urban myth as far as modified sampling is concerned. Adaptation of any original work for however long without permission infringes intrinsic intellectual property and can lead to potential lawsuits. No need to tell this to Ed Sheeran who found this out to his cost in 2017 via a £16m lawsuit settlement over plagiarism and involving his own song Photograph . The singer was accused of unabashedly copying “note-for-note” by the writers of a song called Amazing, released by X-Factor winner Matt Cardle 5 years earlier. In 2018 he had to defend yet another copyright claim, this time in £76 million lawsuit brought by the estate of Marvin Gaye. Thinking out Loud: Let’s get it on, had argued Ed .
So how does the same concept of 'sampling' the intellectual property of visual artists and sculptors stack up in terms of their copyright? In other creative industries like software development, the free redistribution of ‘open source’ intellectual property is today often actively encouraged; Similarly, the wider notion of ‘derivative work’ in art is accepted as a conscious expressive creation that deliberately embraces major copyrightable elements; Some might call this a ‘remix’ like in Glenn Brown’s fully acknowledged literal appropriation of the 1974 book cover illustration of Doublestar by Tony Roberts in his Turner Prize entry Loves of Shepherds in 2000  ; Others might call it an act of studious R&D, such as in 2005 when Scottish painter Jack Vettriano was accused of copying illustrations he had sourced in an artist figure reference manual in his 1992 painting The Singing Butler . Whatever the jury’s verdict was on him, his painting was still later voted as Britains third most popular artwork of all time in a Samsung nationwide poll of 2017. Rather perversely, it was placed behind ultimate stealth street artist winner Banksy with his Balloon Girl and John Constable’s The Hay Wain .
Indeed, was it Banksy’s critical commentary when he directly sampled Vettriano in turn in 2005, in his own Crude Oil exhibition that featured the same dancing figures in his Toxic Beach painting? Possibly, but then Banksy has anyway since been accused himself of plagiarism in some of his own works as well. He had also recently won a legal case in Italy to stop unauthorised merchandising of his work, despite having been quoted earlier as saying “copyright was for losers”. Somewhat of an anarchistic irony there .
About to be unveiled this summer over 17 days, between 19 July and 4 August, is a temporary land art installation at Bales Hush, County Durham that is somewhat reminiscent of key elements from the major work of artists Christo Yavacheff and Jeanne-Claude , and seemingly unattributed as such. Here, the North Pennines Area of Outstanding Natural Beauty (AONB) Partnership have commissioned landscape artist, Steve Messam to install his creation of a 400 metre long tensile and fabric artwork along the exposed mineral vein of a 19th century lead mine on the Raby Estate in Upper Teesdale. Called Hush , the work is inspired by the unique geology, mining history and landscape of the AONB, along with it’s UNESCO Global Geopark status, linked to important Earth heritage. The work comprises 5 kilometres of recyclable saffron yellow fabric, cut into hundreds of suspended sheets - all flailing in the wind like the soul-seeking Buddhist prayer flags called Lung ta (Wind Horses) of the Himalayas.
Bulgarian Christo Yavacheff and his late wife, the French artist Jeanne-Claude were better known as Christo and Jeanne-Claude and probably most renowned for their signature art intervention of 1995 in Berlin called Wrapped Reichstag. However in particular it is their monumental U.S works Valley Curtain, Running Fence and The Gates  that most seem to have influenced Messam as appropriator-in-chief in Hush.
Valley Curtain was installed in 1972 between two Colorado mountain slopes. Made from 18,600 square meters of woven nylon fabric and dyed saffron, it lasted 28 hours before a gale necessitated it’s rapid removal; Running Fence was a longer 14-day land art installation in 1979, involving an 18-foot high ‘veiled fence’ installed over 40 kilometres across the rolling hills of northern California. It comprised over 2,000 panels of white nylon hung off steel cables; More recently, The Gates, inspired by their Running Fence, was a 37-kilometre long temporary public artwork installed in New York Central Park finally in 2005 after many decades of artistic development, negotiation and fundraising. Here, from each of the 7,500 gates, hung a panel of saffron-coloured nylon. Albert Maysles’s HBO film on The Gates  recorded the work for posterity and won a Peabody Award in 2008.
The artistic appropriations doesn’t end there either. The visual and contextual similarities of Steve Messam’s 2015 red PaperBridge  in Cumbria to the 1999 red sandstone Arch and 2002 Striding Arches  by artist Andy Goldsworthy in SW Scotland are also quite striking, (although of course the relative built materials differ entirely). Some form of creative acknowledgement though is made by the artist to the ‘feather-light’ paper bridge structures of Tokyo architect Siguru Ban, although the visual referencing here are far more tenuous. In turn, any artistic debt owed to Goldsworthy seems to go either unacknowledged or unrecognised.
A BBC article from 2014 repeated the old adage that “Good artists copy, great artists steal”  , and to showcase this maxim highlighted an exhibition at New York’s MoMA featuring meticulous copies of famous art. The piece first asked us the question: “is originality really that important?” and later concluded that: “Artists make art, out of whatever materials they need, and never in a vacuum”.
So is there ever such a thing as a completely original thought in art? Mark Twain  thought all new ideas impossible, whether art-based or otherwise. All ideas he said were second-hand, consciously and unconsciously plagiarised, being drawn from a million outside sources: "The kernel, the soul, let us go further and say the substance, the bulk, the actual and valuable material of all human utterances is plagiarism,” he said.
As already mentioned, in modern times, derivative work is already used freely in many other creative industries anyway, be that by open source collaborators, meme writers, graffiti copyists, hip hop musicians, literary translators, screenwriters and dramatists. Despite this, the right to create separately owned derivative works remains an increasingly common yet often misunderstood conundrum within copyright law for visual artists. Essentially though, and with nothing to hide, the first rule of using any creative influence is the simple professional courtesy of just giving ‘credit where credit is due’. Unless of course that influence is argued as being a totally unconscious one, which is a convenient claim used sometimes as a great ‘get out of jail card’ to potentially avoid claims of trademark infringement. Whenever genuine though, it comes in the whispered, subliminal influence of the so-called ‘Echophenomenon’, known even more obscurely as the mouthful: ‘automatic imitative action without explicit awareness’.
So should Steve Messam be hung out to dry like the saffron-coloured washing lines of his Hush installation? Of course not, and any artistic argument over this is rightly subjective anyway. But if any derivative was ever admitted to, then due credit given to the origins of Christo and Jeanne-Claude’s pioneering art of the 1970’s, would not go amis I believe. Difficult to see how some form of homage could not be the case, but then a bit like the shamanistic origins of the Tibetan Lung ta, these new orange Wind Horses are similarly timeless. They evoke their own heart-felt celebration of community well-being and our tiny place set in time, within a greater universe.
Despite this, artists (as well as commissioners and funders alike) need to act more professionally and simply be mindful of the need for both honest expediency and due diligence in acknowledging any debt of creative originality. There is no need to be afraid of admitting this in good faith, and money need not be the driver of it - although it sometimes can be, and to great cost. Just ask Ed Sheeran.
-  https://www.telegraph.co.uk/music/news/ed-sheeran-settles-lawsuit-copied-hit-song-photograph/
-  https://www.nbcnews.com/pop-culture/music/ed-sheeran-face-trial-over-marvin-gaye-plagiarism-lawsuit-n954686
-  https://www.theguardian.com/turner2000/article/0,,404008,00.html
-  https://en.m.wikipedia.org/wiki/The_Singing_Butler
-  https://news.samsung.com/uk/streets-ahead-graffiti-triumphs-over-classics-as-the-art-of-the-nation
-  http://theconversation.com/banksy-finally-goes-to-court-to-stop-unauthorised-merchandising-despite-saying-copyright-is-for-losers-112390
-  https://christojeanneclaude.net/artworks/realized-projects
-  https://www.bbc.co.uk/news/uk-england-tees-49038841
-  https://christojeanneclaude.net/projects/valley-curtain
-  https://christojeanneclaude.net/projects/running-fence
-  https://christojeanneclaude.net/projects/the-gates
-  https://youtu.be/Iho9IbPP8uo
-  http://www.stevemessam.co.uk/paperbridge/
-  http://www.stridingarches.com/
-  http://www.bbc.com/culture/story/20141112-great-artists-steal
-  https://unicheck.com/blog/mark-twain