Is Copyright Law Censoring the Art World?

Posted by Rebecca Schild at Oct 31, 2009 10:00 AM |
Last week, ART and the Center for Law and Policy Research held a workshop on “Copyright, Censorship and the Creative Commons” for individuals interested in examining the art/law nexus, and exploring its broader implications for individual artists and the creative commons. While it appears that artists are becoming more rights conscious, the increasing copyrightability of art today is compelling many artists to critically rethink the role of law in the art world.

The workshop drew individuals affiliated with the arts in many different ways, making for a rich exploration of how legal governance has come to shape art as praxis, influence modern conceptions of “art” and alter the ecology of creativity. The two-day workshop offered artists pragmatic legal tools and advice, as well as the opportunity to discuss the friction between artistic freedom, legal rights, and juridical power in the art world. Judging from the workshop, artists appear to be increasingly concerned with their legal rights. With this said, they also seem to be equally critical of how legal systems may be shaping modes of artistic expression. This ambivalence made for an interesting two days of discussion.

Upon first glance, intellectual property regimes governing the sale, use and production of artistic work may appear wrought with ambiguities for those unfamiliar with legal technicalities. As the globalized nature of legal and technological infrastructures has given rise to complex new challenges for the governing of the art world, there was no shortage of questions from the group in attempt to crystallize their understandings. What does one do when a rights holder has not responded to a licensing request? Can an artist copyright their work when drawing from the public domain? The multiplexicity of the questions made one thing clear – the modern artist must be legally literate if they are to fulfill their rights and obligations under the law. Determining who owns the rights to what, and under what circumstances, can prove more challenging than one may initially assume.

How, and to what extent, the legal system is used by an artist depends on a host of factors. Some of theses factors may include whether or not the artwork has the potential to be commercially exploited, holds intrinsic or traditional cultural value to the artist, or whether or not it can be easily reproduced and distributed using digital technologies. Some participants were interested to learn how they could use the law to protect their work from illegal distribution, while others were keen to how they can contribute to the public domain, while maintaining certain rights to their their work. The increasingly commercial nature of museums and galleries and the risks they pose to artists seemed to be a pressing concern for many. Individuals cited cases of galleries buying the rights to entire bodies of work, thus rendering artists unable to reclaim their artistic rights and integrity.

The monetary value placed on artistic expression, coupled with a technological infrastructure which enables the dissemination of artistic works, appear to have artists seeking greater ownership of what they create. Furthermore, the threat of commercial exploitation seemed to have many artists questioning the possible implications of placing their work in the public domain. The exploitation of art for commercial gain strongly illustrated the need for legal rights to protect the moral and economic rights of artists, and it is within this context that a discourse of rights and proprietorship came to dominate much of the workshop. While only briefly touched upon, A a more nuanced discussion of the rights an artist may obtain under a creative commons license may have led discussion in more open directions. With such emphasis placed on how an artists is to protect their legal rights, the importance of public domain for the art world received little discussion.

While learning how to protect legal rights seemed to be a focus, a leveling sense of ambivalence prevailed as many began to critically questioned the role of the law in shaping artistic expression. From the dominance of the intellectual property framework to the very nature of legal language, legal structures appear to play an increasingly influential, yet ill-suited role, in answering the classic question “what is art?”. In the early 20th century, legal and peer censorship played a prominent, yet more traditional role in determining what did or did not constitute art. India's 1954 nude art scandal involving Akbar' Padamsee's painting “The Lovers” and the similar ostracism of artist Marcel Duchamp for his Dada piece “The Fountain”, demonstrates these more traditional forms of legal and peer censorship, respectively. Today, a more nuanced method of censorship appears to have evolved alongside the complex legal structures governing artistic work. Under the intellectual property rubric, judges and lawyers, as much so as artists, are critiquing the integrity of art and, consequentially, shaping modern perceptions of authorship and creativity.

Many participants found the epistemological power of law in the contemporary art world to be questionable. As new art forms continue to transgress traditional boundaries of creativity and legality, copyright law is becoming an increasingly complex arena. To what extent does the pop art of of Andy Warhol blur the lines between artistic expression and trademark infringement? Does a series of painted lines a canvas demonstrate “some labor, skill and judgment”? Should conceptual artists be able to copyright their installations and freeze performances, however impermanent these works they may be? The work of artist Jeff Koons clearly exemplifies how copyright law may classify adaptive works as extralegal. His sculpture “String of Puppies” –a playful and colorful adaptation of a photograph, was determined by American courts to be an infringement of copyright, even though it had been clear that a great deal of “labor, skill and judgment” had been poured into the piece. Through the artistic gaze, the work was seen as “original” in its own right. To the legal eye, it was a clearly an infringement of copyright. Such a case demonstrates how juridical authority can, and is used, to impose rigid notions of creativity and authorship.

The role of intellectual property regimes in exacerbating power imbalances within the art world was another theme of concern for artists throughout the two days. Participants gave many examples which demonstrated the cumbersome processes artists must undergo to secure a performance license from foreign rights holders. While one performance manager thought they had secured the rights to a show, they were kindly notified by authorities that they had only in fact been given rights to the script, but were never granted permission to use the music. One can imagine how the increasingly globalized nature of intellectual property law can impose financial restrictions on small time performance artist in Bangalore to acquire all the licenses necessary to “legally” perform a classic Broadway show. Considering that shows are normally performed for smaller audiences and do not garner substantial profits, these legal structures often work to reinforce an asymmetric balance of power in the art world.  Other participants noted how emergent Artists Guilds in India are taking almost draconian measures to ensure copyright law is respected by artists and performers in and around the art scene in Bangalore.

The politics of power also permeated discussions of how governments are protecting traditional forms of artistic expression through geographical indication. Geographical indication seems to preserve the spatial contextuality intrinsic to the production of traditional art forms. However, bringing “traditional art” under the umbrella of intellectual property law also raised a host of questions. Considering the disjuncture which exists between supranational systems and local practice, who should hold the power to decide how folklore is protected? These methods of protecting the intellectual property of “the local” often present new tensions between geographical fluidity:rigidity, individual:communal modes of production, and legal representivity:invisibility.

It is evident that the law plays a necessary and functional role for governing the art world and protects many artists from undue exploitation. However, legal structures continue to gain greater epistemological power within the art world as a consequence. This has many questioning how the law may stifling artistic expression; notably as new technologies continue encourage new art forms through the use, adaptation, and remixing of copyrighted works. What will the future of art look like if judges, and artists alike, continue to survey the practice through the lens of legality to the extent they do today? As artistic and legal practices continue to evolve, it may become increasingly difficult to disentangle art from the complex political economy of interests that governs it.

Drawing from such concerns, I am compelled to question why a discourse of rights and protection, rather than one of obligation, continues to dominate discussion of the art/law nexus? If artists are concerned with these increasing legalisms, why aren't they encouraged to preserve the creative commons as often as they are advised to assert their proprietary rights? Wouldn't a discourse of artistic “responsibility” rather than “rights” set the art world on a path towards redefining the role of law and and reclaiming the power of influence over artistic expression? There is a clear need for the art world to recenter the line between legal rights and creative subjectivity, and I feel that more focus on protecting the public domain, rather than individual property rights, would be a proper step towards achieving this. Only by doing so do I believe that artists will be able to ensure that copyright law continues to serve its functional role without becoming a new form of creative censorship.

If the opinions I have expressed raise important questions for you, A.R.T. will be holding another workshop exploring art in the context of social media. As more artists are using the internet and social networking tools to promote their work, new benefits, as well as challenges have risen within this domain. A date for the workshop has not yet been set, however it is planned to take place early on next year.