Incentive to Make or Incentive to Take?

A staple part of the arguments surrounding remixing and derivative works, especially in the US where the Constitution sets out incentive as the reason for copyright protection, is whether the current copyright law is incentivizing or impeding creativity.   Proponents of the ever-growing remix culture claim that the amount of hoops and restrictions placed on works by copyright law impedes a creator's ability to develop new works using old works.  The counter argument is usually that without these sorts of restrictions (fees, negotiations, the rights-owner's ability to control their work, the very long term of copyright protection) people would actually create less because it's easier to just take something someone else has already done. 

Positions on the issue usually correspond to positions on the copyright-copyleft scale.  The copyleft side gets so caught up in putting forth examples of amateur videos and other creative remix projects that they tend to forget that the copyright's argument centers more on straight-up stealing or general non-derivative uses.

A common response among the copyleft-leaning tends to be a sort of dismissal.  The argument is about art and creativity, not just using things.  Artists choose their materials, including previous works, carefully, for reasons, etc., etc.  But there may be something to the copyright's argument: easier access - less incentive to create your own.

This weekend, this ipper had the opportunity to go to the circus, the big circus, the Ringling Bros. and Barnum and Bailey Circus.  And something happened there that made her think about the access to works for re-use issue.  The circus had the usual stuff: clowns, trapeze artists, tigers, elephants...  But it also had something unexpected, pop music.  Not a lot of pop music; just three songs, but it made her think, "was it this necessary?"  After all, a big part of the circus is the circus music.

One song a circus-band adaptation and two were actual pieces of the regular sound recording.  Each of the three pop songs was used differently.  The one that seemed to make the most sense was the circus' use of "What a Wonderful World."  The Ringmaster and a clown were fighting over the Ringmaster's hat.  He who had the hat, had control of the circus.  The clown retrieved the hat, held it up in celebration and the music started as he slowly twirled around.  It was funny because everyone recognized the song.  The song was fitting and an over-the-top reaction to stealing a hat.  A new song, written for the circus, simply wouldn't have worked as well.  This is the type of use where it seems minimalizing restrictions would increase creativity.

The circus-band adapted song was a little different.  It was, by definition, a derivative work, but it added little to the circus in the way copyleftists argue derivative works contribute to creativity in remixes.  While the great motorcycle stunt man rode around in their small metal sphere, the circus band played an instrumental rendition of Rihanna's "Shut Up and Drive."  (written by Carl Struken and Evan Rogers but recorded by Rihanna.)  It's a fairly popular song, but probably not among your typical six-year old circus crowd.  If you know the song well and know the lyrics, it sort of makes sense accompanying the motorcyclists, at least the chorus.  However, if you don't know the song well, it's just some music accompaniment.  This is the middle type of use - it's adaptive and derivative and, to some extent, transformative, but it really doesn't add much to the new work.  It's unlikely that a new piece created just for the circus, or even traditional circus music, wouldn't have worked just as well.

The third song was the copyrightist's poster child for killing creativity and incentivizing people to take instead of make.  A group of clowns, dressed like penguins, slid across a block of fake ice to "The Cupid Shuffle."  They did not do the Cupid Shuffle dance; they just slid across the ice.  There seemed to be no connection between the music and the activity, and the song was just played as it had been recorded.  In this case new music or traditional circus music probably would have added more to the performance than using this song from pop culture.

If the purpose of copyright, or even a side benefit of it, is to incentivize new creation, then it seems uses of existing works in new creative works should have less restrictions than just using something wholesale because it's easier.  But how do we do this?  Different requirements for different uses?  What distinguishes a "creative" use from a non-creative use?  How to we find a happy balance where the law both incentivizes creation and limits just taking?  Thoughts?