Dear Images

Dear Images: art, copyright and culture, eds Daniel McClean and Karsten Schubert, ICA and Ridinghouse, London, 2002, 503pp, b/w illus, pb, £25, 0 9541710 2 0.

This is a tremendously good book. It is also very useful. Useful for anyone who needs straightforward explanations of how copyright operates in the UK, EU and USA; useful for artists and especially those who want to explore the boundaries of what are and are not legally acceptable forms of appropriating works of others, and useful for lawyers unfamiliar with this esoteric area of law (as well as those who are, but want a greater depth of understanding and legal precedents). Above all, this book is ideal for those wishing to discover a rich and comprehensive description of cases where artists have taken action or have themselves been taken before the courts, and have or have not succeeded in asserting or defending claims of copyright infringement. It is also ideal for anyone interested in the contemporary debate about copyright, and how it could or should be improved for the benefit of artists and society.

Comprising essays from 30 contributors whose expertise in their subject areas is self-evident, there are 11 UK lawyers, two US lawyers, and 11 academics from the UK, Australia and France. The foreword by Philip Dodd, director of London’s ICA, offers incisive comments on the contemporary debate about appropriation art emerging in the 1980s, and the increasing commercial exploitation of art: ‘The arguments over copyright in the cultural domain are just one sign that issues over intellectual property are becoming more extensive and intensive, not less, in the new knowledge economy.’ It is to the ICA’s great credit that it has co-published this excellent and informative contribution to that debate. Following an extended introductory overview of the essays, there follow four main sections, which are worthy of review.

For readers unfamiliar with copyright law, the first few essays in the book’s first section, ‘Legal Sources’, give a jargon-free and brief overview of the basics in the UK, EU and USA. This is followed by a fascinating case study of a prize-winning work by Cai Guo Qiang, exhibited at the Venice Biennale in 2000: Rent Collection Yard. This work was a recreation of a 60s communist-influenced work made by sculptors from the Sichuan Academy of Art. This institution contemplated taking legal action against the US-based Qiang, but in the end did not follow this through. The later work is used to demonstrate superbly the complex international and domestic legal issues involved in taking such legal action, where Chinese, Italian and US law would have been in play.

One of the most recent and seminal US cases – Bridgman Art Library LTD v Corel Corporation – is also explored to illustrate the question of whether photographs (of two-dimensional artworks) are regarded by the law as ‘original’ copyright works. A US court decided this case in 1999, and it was held that such photographs (of paintings) did not involve the input of sufficient skill, labour and judgement to pass the legal copyright test of ‘originality’. Whether or not UK/EU courts would follow this US approach is debated.

The suit by the Matisse estate against Phaidon, which was settled out of court last year, is used to explain the ‘fair dealing’ exceptions common in most copyright jurisdictions. Phaidon published its 20th Century Art Book, containing over 500 reproductions of artists’ works, including works by Matisse without prior authorisation having been granted by his estate. About 80-90% of each page contained a reproduction of a work, with the remainder of the page describing it. The publishers claimed that the ‘fair dealing’ exception in UK’s copyright law allowed such reproduction ‘for the purposes of criticism and review’. The out of court settlement represents a significant precedent for artists and publishers, because Phaidon undertook not to use Matisse’s works without prior authorisation, and so agreed to pay royalties to the estate plus interest (on past royalties owed) and legal costs.

The book’s second section ‘Copyright and Art’ explores key features of copyright law common throughout the developed world: ‘originality’; the need for laws to adapt to developments in contemporary art practice; appropriation art, and the internet.

The ‘originality’ test, imposed by the copyright laws of most countries, essentially means that ‘artistic works’ must be the result of aesthetic skill and labour in their production, if they are to qualify for copyright protection. This common legal requirement derives from 18th- and 19th-century legislators’ understandings of a personalist (Romantic) approach to art which, in those times, was their response to the need for protection of mainly figurative or representational works. Modern and, increasingly, contemporary artists have seriously questioned the ‘form/idea distinction’ to the point where the idea (which copyright decidedly does not seek to protect), rather than its execution, constitutes the heart of the work. For example, Christo’s 1986 wrapping of the Pont Neuf in Paris was held by the French courts to be an ‘original’ artwork (so that photographs and films of the work/event were judged to be infringements of the copyright work). But, in relation to, say, Duchamp’s readymades (involving choice and nomination of found, commonplace objects) they would fail the ‘originality’ test. This revealing discourse ends with reference to Renaissance artists whose works were often executed jointly by masters and apprentices, and poses the question of whether the law’s requirement for personal execution is a superfluous criterion today.

Appropriation art has also increasingly been made since the latter half of the 20th Century and is an important facet of postmodernism. Cases brought in the UK or US during this period suggest three possible approaches to this co-called ‘theft’: that the original work was not in fact protected by copyright law; that, although there was an original copyright work, a ‘copy’ was not made, or that, although there was a copyright work and a copy of it was made, the appropriation was ‘fair’ use. Art history is littered with examples of appropriation, and this essay refers to many – from traditional teaching of drawing and painting, through the use of found objects in early 20th-century collages by, say, Picasso and Braque, to Pop artists’ use of mass commodities and iconic images. Dipping into the music business to illustrate the US courts’ latest approach to appropriation and the concept of ‘fair use’, reference is made to Roy Orbison’s hit song ‘Oh Pretty Woman’. For their rap version of the song 2 Live Crew took the opening line of the original recording, along with its distinctive drum and bass riff. The US Supreme Court held that this use was ‘fair’ because of its ‘transformative’ nature (in that it added something substantially new to the original). And this judgment is linked to a prior judgment in a case where Jeff Koons failed in defending his reproduction of Art Rogers’s photograph, Puppies, 1986, in his sculpture A String of Puppies, 1988. Koons’ argument that his appropriation was a fair ‘parody’ of the earlier work was rejected by the court.

Public access to art is explored through an essay focusing on the problems of museums and galleries wishing to reproduce and merchandise images from their collections. London’s Tate is used as a case study: starting with the establishment of Tate Gallery Publishing (a trading company) in 1996, and the Tate Picture Library, followed by the 1998 launch of the gallery’s website to the recently necessary creation of a full-time post of copyright officer to manage all copyright and reproduction issues generated by these developments.

‘ After Digitopia’ is an essay that explores the internet, copyright and information control, and the legal/technological issues involved. Simply put, the scanning, storing, transmission and downloading of copyright works are all acts that infringe copyright. These activities have led to the development of technological devices such as ‘digital wrapping’ and encryption, which raise the issue of whether they ‘stifle cultural experimentation with digital media’.

In the book’s section on ‘Authorship’, the essays tackle wide-ranging issues surrounding authorship and copyright law, and are peppered with historical and recent examples of artists questioning traditional notions of authorship. ‘Portrait of the artist as a brand’ inevitably focuses on Damien Hirst’s self-proclamations of his name as a brand entitled to trade mark protection, while taking into account Duchamp’s readymade and other conceptual works, and also Hirst’s debt to Andy Warhol in this regard. An interesting anecdote is credited to Nike’s CEO who recently described his company as having become a primarily marketing organisation, because its products are now all made under franchise by other companies, and that the products are now the company’s most important marketing tool.

One intriguing essay seeks to make out a case that the copying of Raphael’s Judgement of Paris (c1515) triggered ‘one of the most sustained and substantial sequences of copying and counter-copying in Western Art’. This is a bold argument backed by strong documentary evidence and analysis. In short, we only know of this painting (which became lost) because Raphael’s employee, Marcantonio Raimondi, made an etched copy of it which has survived the centuries since. A few years after the copy was made, the general demand for copies of the original work was so great that Marco Dente da Ravenna made a slavish copy of it. (In passing, we also read that Albrecht Dürer had brought a case against Raimondi in 1506 for copying his etchings, which Dürer lost, although Raimondi was not allowed by the court to include Dürer’s monogram on his copies. This is probably the first record of a copyright infringement case.) We then move on 350 years or so to Manet who, in 1873, used part of Raphael/Raimondi’s original as the basis for his work Le Déjeuner Sur L’Herbe. Manet used the group of three figures in the bottom righthand corner of the original work, and placed them at the heart of his new work, updating their clothing to contemporary garb and adding the naked women (amongst other things). Nearly a century later, Picasso paraphrased Manet’s work in the extensive series of paintings, drawings, sculptures and linocuts he executed between 1959 and 1961, ‘Les Dejeuners’. Were the makers of these later, but derivative, works authors of ‘originals’ in the legal sense?

Finally, in this discourse on authorship, Warhol is discussed in an excellent essay: ‘This is not by me. Andy Warhol.’. This title is taken from an infamous signature by the artist on a fake 1970 print version of his Flowers, 1964. In 1966 Warhol told an interviewer ‘Why don’t you ask Gerard Malanga some questions? He did a lot of my paintings.’ This is true, by all accounts, and so did others of his various assistants over the years – some of them even impersonated him at media events and interviews. This essay not only explores the authority and meaning of the signature in art, the use of found source material, and the re-questioning of the Duchampian readymade, but also takes us through the related significance of the 50s British Independent Group (Ian Henderson, Eduardo Paolozzi, Richard Hamilton, and others). This group, amongst other things, questioned ‘the identity and uniqueness of art itself’. Warhol said that he ‘sort of stopped doing things and started producing things’, as he increasingly got other people to make his work, including especially his films. In relation to Warhol’s appropriation/re-presentation of other artists’ images (iconic photographs, the Brillo boxes, the Campbell’s soup cans, and so on), we are given one example of legal action being taken against him – by Patricia Caulfield, whose photograph of flowers was used for his 1964 work – and it remains the subject of conjecture whether Warhol sought prior permission for his manifest appropriations, and/or whether he was ever legally challenged by the original authors. (Though, incidentally, a very recent clue may lie in the March 2003 UK edition of Tatler magazine, in which there is an acknowledgement of the copyright owners of Warhol’s classic Marilyn Monroe image, reproduced three-dimensionally as a hat worn by the model on the cover of the magazine, as the Estates of Marilyn Monroe and Andy Warhol).

The final section of essays in the book – ‘Bridging the Gap’ – looks at the original justification for copyright, its place in postmodern appropriation culture, and considers the future of copyright. We are treated to yet another example of a seminal artist of the modern era paying homage to an earlier artist’s work, and this is used to discuss how copyright might be changed – for everyone’s benefit – in the future: Van Gogh’s study in oil of Utagawa Hiroshige’s 1857 wood-block print The Plum Garden at Kameido, in his 1887 painting Japonaiserie: The Flowering Plum Tree (After Hiroshige). The writer pursues a hypothetical lawsuit to examine the issues commonly involved in copying/ reworking/appropriating, and suggests contemporary improvements to copyright law in this context.

Last, and by no means least, is the reference to Benvenuto Cellini’s crucifixion of a living man in order to study the way his muscles worked during the agony of his death. This is the starting point for a study of what could be the legal, moral, or social justification for artists committing offences – including copying offences – to make their works. An extreme premise, as is pointed out, but as is also helpfully stated, ‘easy cases make bad jurisprudence’. And so, although nobody would seek to justify such an horrendous act as Cellini’s murder in the furtherance of his art, we are nonetheless asked to consider where we/society/the law should draw the line.

For the reader who wants to study further, or have authoritative references and bibliographical reference material, there is a cornucopia of excellent footnotes at the end of each essay. There is a comprehensive index, and useful (but not enough) black and white illustrations (properly crediting the authors, naturally). The Arts Council of England deserves much credit for making this excellent publication possible through a National Visual Arts Publishing Grant.

© Henry Lydiate 2003

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This article is from the Artlaw Archive of Henry Lydiate's columns published in Art Monthly since 1976, and may contain out of date material. The article is for information only, and not for the purpose of providing legal advice. Readers should consult a solicitor for legal advice on specific matters. Artists can get free online legal information from Artquest.