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>> Copyright
>> 2003 Town Meeting
 COPYRIGHT
TOWN MEETING: Cleveland,
April 12, 2003
Copyright for
Artists and their Public:
Artists’ Rights and Art’s Rights
Speaker
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Summary Report
The Cleveland Copyright Town Meeting, “Copyright for
Artists and their Public: Artists’ Rights and Art’s
Rights,” divided into three parts: an expert review of
copyright law and its evolution in the digital age, a discussion
of the copyright and contract issues artists face when they
go to work for, or sell work or rights to, organizations,
and an exploration of the legality and consequences of art
that appropriates work that is copyright protected.
June Besek,
Executive Director of the Kernochan Center for Law, Media
and the Arts at Columbia Law School, masterfully reviewed
copyright law, emphasizing among other topics: the distinction
between ownership of an object and ownership of its intellectual
property rights; the number of rights included in the copyright
bundle; moral rights (generally downplayed in the US); the
range of exceptions to copyright control and the particular
challenges of the digital landscape, the legal response to
date and what may be expected down the road.
She illustrated
her discussion of the fair use exception with two cases: Rogers
v. Koons (1992), in which photographer Art Rogers successfully
sued sculptor Jeff Koons for selling three sculptural copies
of a photograph of his for over $100,000 each, with no reference
and certainly no permission from Rogers; and Leibovitz v.
Paramount Pictures (1998), where photographer Annie Leibovitz
lost her suit against Paramount for its parody of her famous
Vanity Fair cover of a nude and pregnant Demi Moore. Apart
from the merits of the cases, the Supreme Court’s 1994
ruling on 2 Live Crew’s parody of Roy Orbison’s
“Pretty Woman” made a strong impact on decisions
for parody as a bona fide fair use.
Invoking
the digital challenge (it’s easier to collaborate, modify
work, share it with colleagues and publicize it, but it makes
copying and illegal uses much easier too), Besek noted that
for the majority of academics and creators, the publicity
is valuable and the Internet poses little real threat –
although the issues are less financial than about the integrity
of the work and getting credit for it. Turning to legal responses,
she focused on the 1998 Digital Millennium Copyright Act (DMCA)
and its provisions for protecting digital material: Anti-Circumvention
(Section 1201) and Integrity of Copyright Management Information
(Section 1202). Two cases illustrated how courts were translating
the Act. In Kelly v. Arriba Soft, photographer Leslie Kelly
lost his claim against Arriba’s display of thumbnail
displays of his images discovered in a web crawl (this was
a useful and transformative fair use, according to the court,
with no economic impact on Kelly) but won against Arriba’s
use of an in-line link allowing large size versions of Kelly’s
photographs to be viewed, which implicated the right of public
display and did imply a market impact. She also reviewed the
Napster case, in which she emphasized Napster’s secondary
liability for permitting illegal copying and distribution
of material. The case she said was not about the innovative
peer-to-peer technology but its conjunction with a centralized
database of information about the location of copyrighted
works available for (often unauthorized) copying.
While
the worst elements of the DMCA were being countered in new
proposed legislation, June Besek saw the future in a combination
of enforcement of the law and development of new business
models.
Turning
to the intertwined issues of copyright, contracts and work
for hire, Alberta Arthurs gave a rich contextual introduction
to the conflicts, invoking the 2002 American Assembly report
<http://www.americanassembly.org/ac/atip_na_fr.htm>.
Legal
scholar, Maureen O’Rourke, powerfully demonstrated the
situation of the individual creator in the post-Tasini digital
world, in which corporate publishers force creators to give
up all rights for the same price paid a few years ago for
print-only rights. Copyright offers no protection in this
area and contract law favors the large industrial players.
The only way forward, she suggested, would be in collective
action along the lines of the National Writers Union. In discussion,
the audience was very interested in how this might operate.
O’Rourke’s
legal perspective was given heft and color by photographer
Richard Kelly, who said he spent more time negotiating contracts
than taking photographs, but felt lucky when he could negotiate,
as most publishers cannot afford the time for individual negotiation.
Artists needed a just and balanced regime in which they were
compensated for electronic rights to their work. Kelly expressed
dismay that the legal hurdles facing artists are not discussed
in art schools, and noted the need for artists to become educated
about their rights.
Kelly
was followed by attorney Deborah Coleman, who offered an informed
discussion of a museum’s perspectives on these issues.
She registered the frequent conflict between educational mission
and economic survival and the need to rely on contracts in
a sea of legal uncertainty. The Cleveland Museum was concerned
about the integrity of images and their fate in the world
but was not satisfied by the efficacy of legal or technical
protection measures to date. In questions, Alberta Arthurs
expressed her disappointment that the goals and balance of
copyright were currently being displaced and needed re-adjustment.
She particularly felt it was difficult to organize the many
voices of the arts community into a unified viewpoint to match
that of the corporate world (which, though sometimes disparate
was much more united and forceful on these issues).
In the
third section of the meeting, allowable access and use of
artistic work online was examined by a lawyer/musician, a
new media musician and a photographer. Attorney Mark Avsec
recounted his experience defending himself against the charge
of misappropriation, outlining the “test” of the
elements necessary to prove infringement as proclaimed by
the landmark 1946 case, Arnstein v. Porter. In conclusion,
Avsec proposed consideration of whether we still need copyright
law and whether it was successfully serving its purpose. A
"copyright optimist," firmly supporting copyright's
monopoly, he still had serious questions.
Avsec’s
challenge was illustrated in style by Mark Gunderson, who
demonstrated the signature music collage format of his audio
art band, The Evolution
Control Committee (ECC). Giving full credit to their sources,
ECC’s work (in for example playing radically edited sections
of Dan Rather’s CBS Evening News reports against AC/DC
in the “Rocked by Rape” piece) was illegal, but
should it be encouraged or squashed? Mark Avsec commented
that the work was arguably derivative and it would be interesting
to see CBS’ response to the latest release of the single.
Finally,
photographer Walt Seng recounted his involvement in a case
of unauthorized commercial use of his photographs and concluded
that strong and clear copyright education was very badly needed
and could save many people’s time in unnecessary lawsuits.
In a final
discussion about international law and copyright, the utility
of registering copyright and creators’ ability to make
their own licenses through the new Creative Commons organization,
there was final agreement that artists need to collaborate
proactively on these issuesand to educate and be educated
further about copyright and its implications in the digital
world of today.
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