Someone pointed me to this presentation by Lawrence Lessig, all about the present copyright mess and the use of existing materials in new creative work (in particular the question of fair use with creative methods based on recycling, parody, plundering, mashing, remixing and all that.) It's not a surprise that Lessig, a law professor, is addressing this as a primarily legal issue, and the fact that the everyday practices of a good portion of the population are not legal is a real problem, so Lessig's clear articulation of this problem is welcome. (This topic is also fascinating as it is essentially a conflict between two liberal positions, the first which recognized that creators have a right to claim forms of meaningful ownership over their work, and the second which views access to forms of information as a universal and necessary — to the production of new work — right.)
However, in the larger debate, it's once again disappointing to find that the legal and economic issues continue to drown out an ethical issue which I would frame in the following way: an artist (composer, writer, choreographer, etc.) may often — not always, but often — identify with his or her creative work in a deeply personal way, and may view the manipulation of their work by others as hurtful or injurious, with this view completely independent from any question of whether or not she or he receives compensation in whatever form or amount. Unless the work in question can be identified immediately as political in nature or the artist in question can be identified unambiguously as a public political person, I happen to believe that it is a matter of simple decency, of respect for the private dignity of the person who has created the work as well as for the integrity of the work itself, that the creator has the right to say "no, I would prefer than my work not be used in this manner."* As long as a creative artist is still alive and kicking, and has not had the last chance to revise her or his work or put it into a final form, I believe that it is a real question of character, completely independent of legal or economic questions, on the part of the re-user, whether or not that preference is respected.
I hope that it is clear here that I am distinguishing between an artist asserting such a right as a personal or aesthetic concern — which I support entirely even if I should loathe the work (or the person who made it) — and an assertion of rights for purely economic motives. I well understand that, in the real world, it is not always possible to make such a distinction, but I'm not altogether certain that that should even be a primary concern. Rather this: wouldn't it be a preferable state of affairs if an honest attempt to determine whether the original artist has a preference one way or another were a standard social convention?
* an echo here of Melville's Bartleby is intentional.