Saturday, November 3, 2012

Musings on Copyright

My computer is back up and running, and I promised you a post on Salvador Dalí. I’ll keep that promise, but before I do, I’m going to diverge a bit from our normal topics to talk to you about an issue that has my head spinning:

(Please don’t go away! I’ll try to keep it interesting!)

First, let me give you a brief overview of copyright law in the United States. Lawyers often describe copyright as “a bundle of rights” so we plebeians can understand it better. It includes the right to make copies of a work, the right to adapt a work, the right to distribute a work, the right to display a work, and the right to perform a work. It’s independent of physical ownership and protects books, paintings, sculptures, songs, plays. . . . I could go on and on. But, a work can’t be purely functional. It has to have some sort of creative expression. Also, although it might seem to, copyright doesn’t last forever. Its expiration date depends on when a work was made, whether and when it was first published (or in the case of the visual arts, publicly displayed), and whether and when the creator died. It’s complicated, but in general, if it’s artistic and was made in the last 120 years or so, it’s copyrighted.

I can post this portrait of my beloved husband impersonating an elephant fetus because I own the copyright.

So why am I writing about copyright? I want to talk to you about a variety of art and artists from a variety of times. I don’t want to limit our discussions to two-dimensional works made before the turn of the last century. At the same time, I don’t feel like I have the resources to ask for permission for every image I use. When I’m not here with you, I spend most of my time looking for a good, post-grad-school job and volunteering at a local museum. I also work at my county historical society (for real money!), but that’s minimum wage, one seven-hour day a week.

I can post my dad's doodle because I (theoretically) have permission.

Up until now (with the exception of the Twin Peaks photo and the Dalí from last week), my posts have all dealt with works in the public domain. That means that the paintings, drawings, and lithographs I showed you are all so old they are no longer protected by copyright. But, the coming Dalí post raises several potential hazards. Dalí didn’t die until 1989 (He was alive when I was alive!), and all of his art is still protected under copyright (even though he’s not American, and the works were not produced in the United States, and there are more special rules). Even if it wasn’t, the piece I chose is a sculpture, which complicates matters even more.

I can post Rembrandt's 1659 Self Portrait with Beret and Turned-Up Collar because it's in the public domain.

There are these things called “derivative works.” They’re works that are based on other works. For example, Andy Warhol’s soup can paintings are derivative works based on Campbell’s Soup labels. But, derivative works can also be photographs taken to document another work. It’s generally accepted that a two-dimensional photograph that faithfully reproduces a two-dimensional work in the public domain is not protected. There’s no “creative spark.” Taking a photo of a three dimensional work requires more creativity though. The photographer has to decide on things like the lighting, angle, camera settings. . . . It can result in amazing photos that have a totally different feel than the original piece. In these cases, a photo can be protected under copyright even if the original work is in the public domain.

If I wasn't the one making the "artistic" decision to shoot this sculpture in an ugly setting with a shitty camera, I might not be able to post this.

On the other hand, there’s also a thing called “fair use” that makes it seem like I shouldn’t have to worry about copyright at all. It says that you can use a copyrighted work without permission for the purpose of criticism, comment, teaching, scholarship, and research. So there you go. In my blog, I am researching, commenting on, and critiquing art in order to teach both my readers and myself. But, fair use is not a hard and fast rule. It’s judged on a case-by-case basis based on four factors: the purpose and character of the use, the nature of the copyrighted work, the amount of the copyrighted work used, and the effect on the market. Again, my blog is not commercial, is using only immaterial images of physical objects, and, if anything, is increasing the market for the works I present. At the same time, copyright holders and licensing agencies are becoming more aggressive. They want their fees and may sue even in cases that seem to be fair use. Just downloading an image to your hard drive can be considered infringement!

Anyway, I’m still going to continue with my blog. I believe in what I’m doing. It’s just so much more complicated than you would think.

So, what do you think? Should I be more or less cautious of copyright? Will it affect my chances of being hired in the museum field? Is it super boring? Do you want me to stop talking about it? I want to hear your comments. I’ll try to be good, but if you are a copyright holder and want me to take a picture down, let me know. Please, just don’t sue!

1 comment:

  1. You seem to be approaching it with a healthy attitude. I think you should go ahead and post what you are interested in, unless you know of a specific work already under copyright controversy, or owner/rights' holder who is out-there with their possessiveness. I knew some of this from my Business and Commercial Law classes, but the specific details are interesting, because some of my Arts/Music friends ask me about this sort of stuff occasionally.