Art for art’s sake, Money for God’s sake

Author: Tom Broadhurst

Last century I heard Paul Goldstein’s then provocative view – that the Internet and digital revolution would be the death of copyright.  Others have said similar things but this decease of copyright has not happened – copyright still robustly thrives in the digital arena and is vital in the visual arts. In 2011 an estimated £70M of licensing revenue went to writers and artists (see p. 5 of the report ‘An economic analysis of copyright‘).

We know how digital illuminates and enables. We can visit major art galleries such as the Hermitage, look at art like Damian Hirst’s The Physical Impossibility of Death in the Mind of Someone Living and find help with the creative process of making art. We can, if we have the talent, make pictures of breathtaking beauty on iPhones, or copy and transform images and create new graphic images from others. A good high profile example of the potential of digital manipulation of a photograph to make powerful graphic images is Shepard Fairey’s work on the iconic HOPE poster of Barak Obama.  Much more prosaically I have thoroughly enjoyed finding information and references for this blog post, the first Art IP post for Boodle Hatfield.

However this breadth and facility of digital access and the ease with which copies and new works are made have not displaced the copyright’s centrality as the basis of monetary reward for artists’ endeavours.  There are problems and the current position of copyright, a critical view of its failings in Digital and some iconoclastic solutions for the US are set out in John Tehranian’s good book Infringement Nation Copyright 2.0 and You.

Copyright is the core IP right for the visual arts; it is adaptable, very widespread and very very long lived. It now lasts for the lifetime of the author plus 70 years in the EU and is respected uniformly across the world with some 168 Countries being parties to the main international convention, the Berne Convention.  Some have said copyright now lasts too long see the very trenchant criticism of the respected IP judge Sir Hugh Laddie in “Copyright: Over-strength, Over-regulated, Over-rated”, European Intellectual Property Review 5 (1996); 253-60:

The question to be asked is: what justification is there for a period of monopoly of such proportions? It surely cannot be based on the principle of encouraging artistic creativity by increasing the size of the carrot. No one is going to be more inclined to write computer programs or speeches, compose music or design buildings because 50, 60 or 70 years after his death a distant relative whom he has never met might still be getting royalties. 

Copyright has adapted from its inky origins protecting books and other printed works to cover a whole range of literary, dramatic, musical and artistic works.  From its modern development from the Statute of Anne 1710 copyright has broadened to incorporate typography and new media as they arose, such as photography, film, and broadcast and recorded works.

Copyright comes into being when an author creates a work, such as making a drawing, or creating a digital file, and does not require any registration or formalities.  In all countries which are signatories to the Berne Convention copyright comes into existence automatically upon creation of the work, although in some countries registration of works with the national copyright office is still possible and important.

Copyright is (in contrast to patented inventions) a ‘qualified monopoly’ in that it is infringed only if you copy the original work, and not if you derive the alleged infringing work independently from the original work.  It is also important to understand that copyright is a ‘negative right’ – while it can prevent another from copying a work (or doing any of the other restricted acts set out in section 16 of the CDPA) it does not give a positive right to an owner to use a work herself if that work includes other author’s works so that several copyrights coexist.  For example, the artist  Jeff Koons made sculptures of a couple sitting on a bench proudly holding eight Alsatian puppies in a row but, as the sculptures were a copy of early photograph the US Court Appeals held that Koons could not deal with his infringing sculptures (see here for good images of the two works side by side).

The visual artist faces challenges and opportunities.  Aside from whether she creates good art and can sell it, her challenges include (a) finding out about unauthorised commercial exploitation of her art and (b) stopping such exploitation.  If she is a successful artist then copyright and resale royalty can provide good financial rewards from licence payments (see the excellent post on this on Resale Right or Droit de Suite).

These payments, known as ‘royalties’ from their origins under royal rights in monopolies in printed books, are either for reproductions of works or for subsequent resale of their works.  Royalties may be collected through her directly or through her membership of a collection society like DACS in the UK.  If artists wish to allow specified uses of work they have created, they may consider licensing their work under a Creative Commons licence and if so what type of licence they wish to grant.

However, finding infringements may be hard to do as most non-commercial or small scale infringement will go unnoticed.  Even if there is apparent commercial use it may not be of sufficient scale, in terms of money generated for the infringer, to warrant any more than writing to the offender requesting they cease.  Typically you would consider simply writing to the infringer requesting her to remove the infringement, and then, if necessary and relevant, contacting the host server and the search engines.  If the infringement is a commercial online use, any associated advertisers could also be written to bring pressure on the infringer.

However if there is sufficient money at stake the artist may obtain legal advice to go to court and obtain payment for the infringement and a court order that it cease.  In the UK the IPEC takes IP cases up to a limit of £500,000 with capped legal costs while the Patents Court takes on the larger or more complex IP cases.  If there is not, then the artist may have no realistic legal remedies to combat infringing use.

This article was written by Tom Broadhurst, an Intellectual Property and IT Consultant for  Boodle Hatfield.

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