In Defence of the Image

Does copyright law stifle creativity, or does it protect and encourage creativity by enforcing the legal and moral rights of original authors?

‘A good composer does not imitate, he steals.’
Igor Stravinsky

T S Eliot borrowed Stravinsky’s epithet and re-worked it: ‘Immature poets imitate: mature poets steal’.

It was about such issues, and many related ones, that a one-day seminar was held last April at Camerawork, the East London darkroom and gallery. Key speakers included Stewart Home, artist and writer; John Roberts, writer; Gwen Thomas, Deputy Chief Executive of the Association of Photographers; Rachel Duffield, Chief Executive of the Design and Artists Copyright Society (DACS); and David Mabb, the artist whose photographic images he had appropriated from photographers who had then refused Mabb permission to use them in Camerawork’s exhibition ‘Europe In Our Time’. It was as a direct result of these refusals that a seminar In Defence of the Image’ had been conceived and arranged, with sponsorship from DACS and the National Artists Association. The Seminar provided a forum where the issues of appropriation could be examined in public debate: does copyright law stifle creativity, or does it protect and encourage creativity by enforcing the legal and moral rights of original authors; what is original; although the law specifies that artists whose work is still protected by copyright should have the exclusive right to control the reproduction and use of their images, does that law also restrict and impede creative development? Mabb opened the debate by outlining his working practices and reasons for using well-known contemporary photographs as essential components in his work. When Mabb first appropriated photographs, he said he was naive about what the law allowed him to do with the images. When the other creators asserted their copyrights to prevent his using of their images, Mabb soon acquired a good working knowledge and understanding of this complex area of law, which legal jargon calls ‘intellectual property’. Mabb remained shocked that other authors were willing to use the law against him, and believed that every creator should be free to criticise and elaborate the work of other artists. Thomas asserted that photographers need to be able to control how their original works are used by others; their livelihoods were at stake. It was, of course, recent advances in technology that had promoted the increased use of original photographic images. But this, in turn, had caused commercial users of such images to insist that photographers comply with onerous contractual terms for signing away their copyrights, leaving them with no rights to use in future. Thomas considered that, on balance, the laws of copyright and moral rights helped rather than hindered creators.

Roberts referred to his latest book, The Art of Interruption – Realism, Photography and the Every Day, to be published in 1996, and gave a theoretical and political analysis, including his contention that the history of modern reproductive technologies should serve as a reminder to everyone that such technologies destroy the exclusivity of art as a commodity. Roberts firmly believed that the law would not stop artists’ customary practices of appropriation and manipulation. Home, who is well known for having organised the ‘Festival of Plagiarism’ in London in the 1980s, contended that the act of plagiarism was often unconscious, for every author re-works and re-uses the ideas of others. Home believed that it was important to recognise and understand the history of plagiarism and in his view such debates had not advanced since the last century. Duffield saw artists’ use of intellectual property law as both a sword and shield: many authors were often quick to cite the law as an obstacle to creativity when it suited them yet were equally keen to rely upon it as a form of redress when their work had been appropriated without permission or payment.

Audience participation was lively, many disagreeing with the arguments that had been advanced. Some considered that the vital issue was not whether artists appropriated the works of others, but whether commercial enterprises did so and thereby profited from such abuses, to the detriment of the integrity, reputation and livelihoods of the originators. Towards the end of the debate, a consensus began to emerge about one issue: art education. Does it provide students with the right kind of information and understanding to equip them, to deal with the commercial dimension of professional practice? Most of the audience considered it did not do so; yet, somewhat perversely, it encouraged the use of the works of others as a natural and helpful process of student development. As a result, most graduates left art college more confused than enlightened about the hard edges of working life.

Copyright law exists throughout the developed world today because creators, especially visual artists, have demanded it. From the 15th Century, when Guttenberg’s innovations emerged, through Hogarth at the end of the 17th century, the development of photography in the last century, to the microchip and laser of modern times, originators have continued to demand of legislators increasing and more sophisticated forms of intellectual property protection for themselves. From legislators’ perspectives, justification for copyright law lies in fair play. An author works and produces something, which is the product of his or her aesthetic skill and labour, that product should belong to such creators, or possibly their employers; the painter, for example, has an interest not only on the canvas – the physical material used – but also in the aesthetic skill and labour involved in the choice of colour, line, form, perspective, light and shade, and in the exact way in which the painter expresses his or her ideas by the choice and use of all those techniques and materials; but only the original painter should have the right to reproduce the original painting and sell copies; if others were free to do so, they would be making a profit out of the skill and labour of the originator.

On the other hand, as Eliot and Stravinsky have so appropriately observed, the best authors steal. But I believe it was Le Corbusier who appropriated and re-worked those celebrated stealing epithets for visual artists: all artists steal, but the truly fine artist repays a thousandfold. Copyright law seeks to reflect this truism by acknowledging that if an image is stolen, but cannot readily be seen in a later work because the appropriator has put into it so much more of his or her own aesthetic skill and labour, the original artist can have no legitimate grievance.

© Henry Lydiate 1995

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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.