‘Public image, you got what you wanted,
public image belongs to me,
it’s my entrance, my own creation.’*
This week I was approached by Recession Pictures who, despite having a name fresh from Britain in the eighties, have a particularly seventies problem.
In June 1971, this advertisement appeared in the old time ‘Studio International’:
We’re going to do for art what Henry Ford did for the motor car
Tactfully avoiding a detour into whether the recent Boilerhouse show succeeded in reversing these fine sentiments by making the Ford Sierra into art, let us look at some of the factors which took the steam out of the original multiples movement, and are now bothering their eighties counterparts at Recession Pictures. An artist-run publishing company, it produced multiple-original postcards and prints – which it sells through gallery bookstalls and department stores – and also promotes other activities such as a projected touring exhibition and the series of curious advertisements which recently appeared in this publication. Recession wish to use their business structure to disseminate the work of other artists, in addition to their own, and this is the point at which they began to encounter the inconvenience of an art form which relies intrinsically upon relating to others through existing channels.
Their publishing operation is essentially about the legitimate exploitation of copyright images, and their screen printed post-cards (retail price 40p) carry a very correct little copyright notice on the back. Recession, however, are worried that in order to do what they want to do, they may be unqittingly infringing other people’s copyright. One postcard carries Space Invader images – are these copyright they wonder?
The first question to answer is: are the video images protected by copyright? Assuming that the video image was an original, the author would be the creator of an artistic work which would be entitled to copyright protection. (Hit was a copy of a pre-existing image, the making of a later video would itself be an infringement of the original artist’s copyright). Next question: does the copyright protection still subsist? Yes, since the author is almost certainly still alive or, if dead, will have died within the past fifty years. Therefore, the video image would probably be protected by copyright, and the owner of the copyright would be the original creator/artist or his employer, or anyone else to whom the owner has legally assigned the copyright. Leaving aside ownership, the next question is: does the reproduction of the copyright video image on a postcard or poster infringe the copyright? If the copyright owner has not authorised the reproduction, it is an infringement.
The likely consequences of reproducing and publishing the copyright video image are that the copyright owner could sue Recession and would undoubtedly succeed in proving copyright infringement. The court would probably order Recession to pay damages (monetary compensation for the wrongful use of the image) and grant an injunction ordering Recession not to do any more on pain of a fine or imprisonment for contempt of the court’s order.
What recession ought to do before using the copyright video image is to contact the copyright owner and negotiate the granting to them of a copyright licence (permission), probably for a modest fee, authorising them to use the copyright video image for Recession’s project together with a credit to the copyright owner. Failure to do this could prove very expensive, particularly if the postcards sold well – which would be the time at which an action would become most likely. On a pragmatic note, it may well be that the copyright owners would be delighted to authorise the use of their image (good publicity) with suitable credit and, perhaps, with requiring Recession to pay a copyright licence fee.
Moving on, the same card refers to the Tate Gallery – the artist wonders whether the Trustees of the Tate (or anyone else for that matter) has any comeback against him. The reference is: ‘”Space invaders burn down the Tate Gallery.” . . . as a youth reading about dada, I had fantasies of razoring the Turner collection, paint stripper on the Rothkos and arson attacks at the National Gallery.’ If the reference made the public think less of the Tate Gallery, so as to harm its public reputation, the publication might be defamatory – in which case the Trustee could sue for damages and/or an injunction to prevent publication. Or, if it led the public to believe somehow that the card was issued by the Tate, then Recession might be sued for passing itself off (through the postcards) as the Tate, when it was not. Readers here can judge for themselves (bearing in mind that if it were actionable, this writer and the publishers of this magazine could also be liable – having just re-published the statement). Even worse, our worried entrepreneurs are concerned about the potentially inflammatory incitement of an act of arson-when might that become an offence? In this context there is no real risk of anyone being incited to do anything; in my view, it is merely a curious statement recalling an experience of fantasy.
Recession Pictures also have plans for publications which would involve the use of well-known gallery logos, and an allusion to advertising claims made by those galleries. This is a big one, and the brief answer is ‘don’t do it’. Gallery logos can be the subject of copyright protection like any other original drawing or design; even if the gallery is not the actual owner of the design copyright, they would probably be able to enlist the help of the original artist/designer to bring legal proceedings to prevent or sue for a copyright infringement. As for the allusion to galleries’ advertisements, whether visual or literary allusion, the real risk is defamation. A gallery’s reputation could be hard hit by unfair and prejudicial allusion, and our two enquirers would be well advised to take avoiding action. However, English law has always stalwartly tried to protect every citizen’s freedom to publicise fair and justifiable comment or truthful statements, particularly on matters of public importance; it may be, therefore, that an art lawyer could be helpful in finding a way forward on such a project to advise the striking of a just balance between the gallery’s freedom from defamation and the critic’s freedom to comment.
Our two adventurers also wish to know whether their own advertisements published as artworks are governed by the same controls as commercial advertising. The broad answer is ‘yes’, but it raises interesting questions about control. The fact that their advertisements are intended to be artworks as well is irrelevant: if they advertise the company (other than very obliquely or incidentally) they would probably be regarded as advertisements. (As a completely pink herring, it will be intriguing to see what will happen to the Benson and Hedges ‘artworks’/’adverts’ when the Government completely bans all cigarette advertising – and B & H then continue, as they undoubtedly will, to publish their ‘artworks’ without, of course, the printing on the gold packet. Advertising?) With that in mind, the same controls over commercial advertising apply to Recession. Currently, there are few legal controls, in practice: defamation, passing off and false trade descriptions are the main ones. The chief controls on advertising are in fact voluntary and self-imposed by the advertising industry, which prompted the establishment of the Advertising Standards Authority (c.f. the ‘Legal, Decent, Truthful, Honest’ campaign). Such policing of advertisements, whether on their own initiative or in response to complaints from the public, enables the industry to avoid punitive legal controls or censorship being imposed by Government legislation. Whilst this body, and its sibling Office of Fair Trading, enjoy public support for their work, only the most obviously unlawful or illegal advertisements are likely to attract legal sanctions. It would be sensible, therefore, for Recession to consult those two bodies for advice not only as to the content of Recession’s own advertisements, but also as to their concern for the standard of advertising employed by the galleries mentioned earlier.
An integral element in the running of Recession Pictures is that the company should make itself available for the dissemination of works by many different artists, and that this can take diverse forms. This laudable flexibility, in itself, is also creating problems. Recession is currently attempting to draw up a contract, to set out the relationship between the company (the two artists being Directors) and other artists for whom it publishes work. They are worried that the company may find itself the subject of lawsuits relating to work of contracted artists, or that the company may (deliberately or inadvertently) be misrepresented by the action of one of its artists.
The idea of using a written contract is sensible. The best approach is always to decide what you want and then make it absolutely clear in writing, but it is foolish to attempt this without expert legal advice – particularly when the whole nature of the business requires skating on thin ice. As for the company becoming the subject of lawsuits, they are in exactly the same position as any other publisher – they have legal liabilities, as publishers, for anything published by them – which cannot be avoided by contractual terms they might have agreed with the artists. The best they could achieve would be to create a contractual term which had the effect of requiring the artist to indemnify the company against any costs or damages ordered by a court in the event of the company (as well as the artist) being successfully sued for, say, defamation. This could only apply in very limited circumstances, and would need careful and expert legal advice.
To safeguard against misrepresentation of the company by its contracted artists is virtually impossible. Ironically, the company is in the same position as the galleries (referred to earlier) which give the company cause for concern: Recession, see above.
Recession Pictures are not alone in having returned to the late sixties initiative towards multiples and alternative dissemination methods for art. With hind-sight, it could be argued that the issues discussed above (and their older and fiercer friends and relations) were the major factors in killing off the idealistic movement in the early seventies. The Whitechapel Gallery’s 1970 ‘Multiples’ exhibition contained examples of work by over three hundred artists but, less than five years later, the concept had been largely abandoned as a serious art form.
Creative use of the law cannot overcome all practical problems, but it is possible that a new breed of art/businessmen assisted by sympathetic advisers may be able to negotiate obstacles, and to market a lively, surprising and relevant product.
© Henry Lydiate 1983 (with thanks to Recession for permission to use their case)
*© Warner Bros. Music Ltd./Virgin Music (Publishers) Ltd.