As threatened promised, I attended the Professional Development Seminar on copyright last night at the Center for Book Arts in Manhattan (also browsed the galleries while I was there, but that's another post). The presenters were two lawyer/artists or artist/lawyers from Volunteer Lawyers for the Arts: Sergio Muñoz Sarmiento, Esq. (JD, Cornell, visual artist) and Kelly Kocinski, Esq. (JD, Brooklyn Law, dancer). Great presenters, great discussion, great questions by all in attendance.
Probably the most important impression of the evening was the fact that copyright is an absolute protection for the artist, but extremely fluid when it comes to the use of other people's work. Even when working with codified laws, the legal system in this country tends to work with precedent rather than absolute interpretations, and as Kelly pointed out, decisions are often made in courtrooms according to where people feel the line should be drawn, rather than by some clear-cut criterion. In other words, as Sergio said, quoting another lawyer, "Fair use buys you the right to go to court." It's not an absolutely clear defense that protects you from being sued, even in an educational setting. Here's an example from an actual case that Sergio used to illustrate how slippery and arbitrary the law can be:
An artist uses two Disney characters in his own art, placing them in, shall we say, compromising positions. Disney, of course, sues, after getting wind of it. Because the exhibition is in a small, out-of-the-way room and not seen by many people, and restricted to adult viewers, the jury decides that gives the artist's work more protection than if it were being viewed by anyone in a big public space. As one attendee said last night, that's absurd. Welcome to the wonderful world of law; check your logic circuits at the door. Because law, like art, is a human activity.
The good news is that, as an artist, copyright is a powerful protection that gives you a bundle of rights to control your own work. As a copyright holder, you have the right to
- reproduce your work;
- perform or display it publicly;
- make pictures, photos, posters, put it in a catalog; and
- make derivative works from it, among other things.
As the copyright owner, you can license others to reproduce your work, in a different form, in a limited run, for a specific purpose, and control absolutely how it is reproduced. Copyright is essentially a property right; your work is treated as a concrete asset, like your TV. If someone walks off with your flatscreen some weekend, that's theft; if someone makes use of your art, pretty much in any way, shape, or form without your permission, that's theft, too.
These rights go into effect, thanks to recent changes in the copyright law, the moment you materialize your idea. Since copyright does not protect ideas, that idea must be made into concrete material form before you can sue someone for stealing it. And it must have been made into material form before the person you're suing did so. Proving this is the tricky part.
Registration of your copyright is your best bet, because that time-stamps your creation and provides the strongest proof that yes, indeed, this was your idea first. Against evidence of a registered copyright, there's not much defense. Registration also earns you the right to automatically have your case heard in Federal Court, which saves several steps in the inevitable appeal process. So, how do you register a copyright?
First of all, that mailing it to yourself thing means nothing, apparently. It used to, but not now. Now, you must either register your copyright electronically or by hardcopy through the mail (either is fine) with the Copyright Office. Remember that just by making your idea concrete, it is granted protection. Registering it safeguards your right to control its use and reproduction and makes it easier to sue infringers. It's an easy and fairly inexpensive process, and worth doing. Your work is copyrighted from the moment the Copyright office receives your registration materials.
This is especially important if you have an on-line portfolio, because we all know how impossible it is to keep control of our work when it hits the Internet. There are two options for registering on-line work. You can copyright and register the entire website or blog that you build, or you can register the individual works on that blog or website. You're actually better off doing the latter, because if you register the blog or website, you must re-register it every time it's updated. The expense is probably about the same in the long run, but registering the individual works will likely give you better protection.
And, dude, if you're an infringer? You better have some pretty deep pockets. Say you make Christmas cards of somebody else's work, without their permission. Each one of those cards is a separate infringement that can cost you between $10,000-$150,000 each. Yeah, each. Did I say each? So those 25 family members and friends could cost you $250,000-$3.75 million. See your life flashing before your eyes? I did.
Here's the bad news: practically any use of other people's art or text that was created since 1922, without permission, is a copyright infringement. That includes posting pictures of other people's art on your website to say, "Hey, isn't this great stuff? Go see this exhibit!"—an activity of which I am (and most of the rest of us are, too) guilty, guilty, guilty. All those Peter Calleson emails that have been making their way around the net in the guise of a "contest" at the Hirshorn (bogus, by the way)? Copyright infringement. Even though you're doing the artist a favor by providing free publicity (which is why many of them don't object), they still legally have the right to sue your butt off, just because you didn't get permission first. The sad part is (and I'm going to start doing this), all you have to do is send the artist an email and say, "Hey, I have a blog I'd like to feature your work on. Is it okay if I use one or two of the pictures from your website, and provide a link back to it?" That way, the artist has the right to say, not just yes or no, but also, "yes, but please use this photo with this caption, at this size or resolution." Probably very few artists are going to say no, but that one who does could own you for the rest of your natural life, financially speaking, if you post their work without permission.
That 1922 date is important, and clarified something I thought I already knew. Anything made before 1922 that hasn't had its copyright renewed, is absolutely fair game, regardless of whether it's in a museum or not. What MG and I were paying the Louvre for when we used their Three Muses image, was the right to use the high-resolution image itself. If we'd gone to the Louvre and taken a picture (something most museums don't allow for precisely this reason, although you can get permission), it would be our image of that artwork and we wouldn't have had to pay anything to anybody. Museums and archives use these "official" images as a revenue stream, and you can hardly blame them for wanting a few bucks for them. So the question you have to ask yourself is whether you need to get permission for the particular image of an artwork you want to use, rather than for the artwork itself.
How you use another artist's work is also important. This is where the concepts of "transformative" and "derivative" artwork come in. A derivative work is anything that uses the original artwork in full or (here's an important concept) in part, even if the rest of the work is entirely original. This includes using a chunk of text, a portion of an image, or, even (sometimes) using a particular font as your main design element. Contrary to popular wisdom, the amount you use does not matter. There's no fixed percentage of an image, video, sound clip, text, or anything else that's okay to use. There's no "100 word" limit, no "7-second" limit, no "10% limit." Juries are arbitrary creatures and they may decide that your 10-word phrase from a 85,000-word book or fractional reproduction of a postcard was too much. This is where Fair Use is so deceiving. If you use anything of another artist's copyrighted work without permission, that's infringement. End of story.
So what's this "transformative" business? A transformative work is one that takes another artist's work and alters it substantially. That modifier, "substantially," is the part that can mess you up. "Substantially" in whose opinion? First, the original artist's. If it's not a substantial enough alteration for them, they will sue you. Second, the jury's. If it's not a substantial enough alternation for the jury, they'll find you guilty of copyright infringement and you'll be out lawyer's fees ($500/hour), court costs, and a hefty fine (see above).
Obviously, this makes collage a risky business, if you're using copyrighted images. Is it derivative or transformative? Of course, if you're using ephemera produced before 1922, there's nothing to worry about. But even if you're using images you find on one of those art-for-free websites, there's usually a disclaimer that says you can't use that image in a commercial work. Whatever work you make with their free art has to also be free and available for mashup. This is the essence of several Creative Commons licenses. So again, make sure you know who owns the copyright and what the terms are before you use something. (Incidentally, there's an interview in the April 2008 issue of Mother Jones with Shepard Fairey of Obey the Giant fame in which he talks about about appropriating other people's work. It's not online yet, so I don't have a link for you.)
A kind of rule of thumb about transformative works that Sergio mentioned last night has to do with commercial versus artistic intent. Say you buy a copyrighted book and decided to rebind it as an art object. Since there's only one of them, you're probably pretty safe doing that (although theoretically, you could still be sued). But if you buy 500 copies of that book, rebind them, and resell them, that's a commercial intent that theoretically can be seen as harming the author's commercial market. If people buy your rebound book instead of 500 copies of his officially published book, that's 500 sales the author and the publisher have lost. Again, though, there is no hard and fast rule about how many is too many. It's all about perception—not yours, but the copyright holder's.
Likewise, if you took that single copy of the book and substantially altered the text in some way (blanking it out, painting it over, cutting it up, rearranging the signatures or pages or somehow making it generally unreadable) you're probably safe doing that. (Notice the "probably"; nothing is hard and fast under copyright except the ownership terms.) You've transformed the original book into an art object. Again, though, if you did this 500 times, you're still leaving yourself wide open to a civil suit, because it may still affect the author's sales (for instance, collectors may gravitate more toward your book than toward the author's first editions).
In addition, trademarks are something you may have to consider. Another example from Sergio: If I go down to Times Square and take a photo that includes the Minolta lightboard and there happens to be a Nike logo on it at the time, I have to get permission to have those trademarks appear in my photo before I can reproduce it commercially, even though I own the copyright on that image. With so many iconic buildings in the city, it's good to be aware the even architecture can be trademarked. One of the attendees last night works for DKNY and mentioned that they send umpteen bazillion dollars each year to the company that owns the Empire State Building to use its image in DKNY's advertisements. Who knew?
Similarly, if you use photographs of (living) people you need to get a release from them before you can reproduce their image for commercial purposes. This bummed me out because I took a bunch of great photos of some of the skaters at Rockefeller center yesterday and now I'm going to have to make sure none of them are recognizable. And boy is that tricky! Blurring out is one option, but don't count on distance to do it. Years ago, when I first moved here, I recognized myself on a greeting card photo taken as I was walking across Washington Square Park. It's a tiny image, but even my friends recognized it, before I did. The funny thing was, I saw the photographer at the time, too. Another of the attendees mentioned she'd seen a photo of her family on a documentary about WWII on PBS, and nobody had approached them for a release, either. She didn't care, but don't discount the fact that someone else might.
If you've been paying attention, you know that almost every statement I've made about copyright is followed by the words "without permission." That's the simple rule with copyright. Get permission. Ask the artist or writer if you can use their work. It isn't always costly and it can lead to some really great collaborations and connections. Not getting it can lead to bankruptcy and some nasty time in court. It costs you nothing to ask and it's really just common consideration. As I said in the last post, don't be evil.
UPDATE 3/22/08:
Someone in my book arts group responded to this post with the following:
If you are rebinding a book with your own, original cover artwork, but leaving
all of the pages that have any printing on them intact and in order, this is
technically not a derivative work and technically subject to the right of
sale . . .
Not true. Right of first sale applies to used books only. Anything rebound and sold as an artwork is a derivative work; it derives from the original text by using it in the rebound book. Here's the definition of a derivative work direct from the government copyright site:
A “derivative work,” that is, a work that is based on (or derived from) one or more already existing works, is copyrightable if it includes what the copyright law calls an “original work of authorship.” Derivative works, also known as “new versions,” include such works as translations, musical arrangements, dramatizations, fictionalizations, art reproductions, and condensations. Any work in which the editorial revisions, annotations, elaborations, or other modifications represent, as a whole, an original work of authorship is a derivative work or new version.
A typical example of a derivative work received for registration in the Copyright Office is one that is primarily a new work but incorporates some previously published material. This previously published material makes the work a derivative work under the copyright law.
To be copyrightable, a derivative work must be different enough from the original to be regarded as a “new work” or must contain a substantial amount of new material. Making minor changes or additions of little substance to a preexisting work will not qualify the work as a new version for copyright purposes. The new material must be original and copyrightable in itself. Titles, short phrases, and format, for example, are not copyrightable. [my emphasis]
By simply adding a new cover (changing the format) without changing the contents (the text) you are creating a derivative work. Your cover alone is not a substantial amount of "new work" and thus is not copyrightable as your original work, because you're including someone else's text that is already copyrighted. Let me say this again:
Just buying the book does not mean you have bought the copyright, anymore than buying a copy of a movie DVD means you can re-edit and broadcast that movie (remember those FBI warnings at the beginning? Read them next time. In detail.) You may be a fabulously creative, original bookbinder, but your cover does not in any way substantially alter the contents (which is, after all, the main part of the book), and the book you produce is therefore derivative. You can't just appropriate someone else's text to bind without permission, whether you bought the book or not. Sure you can resell your previously owned used book. What you can't claim is that your covers make it a new work of art. They don't. You only own the book, not the copyright.
Why is this so hard? All you need is permission. Just. Freaking. Ask.
Thanks Lee. All very interesting of course. I think 'we all'* just make this assumption that the internet floats a little above the law. The 'don't be evil' maxim is a worthwhile philosophy even if you don't believe/care/respect anyone or anything: it's simple insurance against financial penalty in the basest sense.
You're pre-empting the opening line to the 2nd part of my essaythingydoodle: 'There is no copyright or licensing restriction that cannot be overcome by the granting of permission' ! (pity I'm a lot lazier than you at getting my writing fingies into action)
*I'm not necessarily sure who I include in this group. Certainly all us casual bloggers for sure. But I'm starting to see (for instance) myspace pics turning up in the MSM (eg. the NY governor's prostitute). I wonder if they have been vetting that sort of theft (as I think it is) with their legal depts? Passing wonder.
Posted by: peacay | March 15, 2008 at 12:38 PM
My pleasure, Peacay. Sorry to "pre-empt" your opening line. It's certianly worth saying again. Permission is much less of a big deal to get, especially from individuals, than people think it is.
And yeah, it's interesting to see the mainstream doing the appropriating too. They're certainly not above it. I wonder if they don't have a sense that they can get away with it more easily than the "little guys." And it's funny how often, when they're caught at it, they blame it on "the interns," i.e., the kids who grew up with the Internet and see it as a vast freebie library.
When I wrote "we all" I was certainly thinking of bloggers in general, but people do it in emails too, which makes it an even larger group than the bloggers. I think we have to sort of resign ourselves to the fact that once it's on the internet, our control over it is very tenuous. I've been pirated, and I'm sure you have too. There are whole sites that do nothing but. I just got my last copyright post removed from one of them by Google.
Posted by: Lee Kottner | March 15, 2008 at 02:27 PM