I Can’t Sell My Artwork

 No, this post isn’t a lament on finding buyers for my work, it is my fear that copyright law^[1] is getting out of hand, and is actually working against the rights of creators.

Contrary to popular belief, copyright was originally invented to protect the church and state^[2]. Most people today are under the impression that copyright exists to protect the artist, and to encourage creation of new works by securing monetary reward. That is, copyright enables the artist to control who uses their art, and for what purpose. In theory, this is great. If a company wants to use a photograph for an advertising campaign, for example, they have to get permission from, and probably give payment to, the artist. Perfect. The artist can choose not to taint his artwork, and the artist gets fairly compensated.

There are a (huge) number of problems in how the copyright system works today, however. For a lot of this discussion, I will pick on the USA because, arguably, their policies are influencing the rest of the world, but that doesn’t let the rest of us off the hook.

Copyrights last way too long. Copyright lasts (in Canada, the USA, and other countries) many years past the death of the author^[3]. Now, the purpose of copyright, according to the US constitution, is, “…To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” The key phrase here is, “To promote the Progress”. I will assume this to mean the creation of new works of art. However, with long term copyright, the result is the exact opposite. Let’s assume I am a fairly lazy artist. If copyright only lasted, oh let’s say 14 years^[4], I would have to produce at least one commercially successful work every decade and a half to make a living selling copies before the work became public domain. With a longer term copyright I can produce less and still make the same amount of money (making the further assumption that the work continues to be commercially successful. In fact, if the work is not still commercially successful, why is it copyrighted?)

A related issue is that corporations can own copyright. Corporations are not people. They cannot create. (ok, I will concede that corporations can create profit, but it is still the individual employees who create everything else). Now before everyone gets up in arms about work for hire, let me explain. A single photographer (I will use photography, since that is what I do, but any art form will fit), or at least a team of individuals (I have no problem with a group of individuals co-owning a copyright), can create a work. While a company can pay them, said company is not directly creating the work. Now, this (these) artist(s) can license all copyright to the hiring company/corporation, and this company could even register the work as a trademark, and so protect the work form infringement. This lets the corporations protect themselves from competitors stealing their image^[5], while still letting unused art move into the public domain (see below). So if corporations can’t create, and (theoretically) never die, why can they hold copyright^[6]. I guess my problem here is that I thought the artist held the copyright. I don’t believe copyright can be sold. License and rights, yes, but not the original copyright. That does however also cause problems with inheriting copyright, but hopefully I don’t need to go into that (see above).

All art is influenced, if not based on previous art. We use the expressions and explorations of others to inspire and lead us to further expressions and explorations. A technique used by one artist is refined and adapted by another. A large part of art education is looking at the work of other artists. A lot of discussion and criticism of art revolves around recognizing and placing influences. Ask any artist how they got started, or more directly who influenced them, and it becomes obvious that art cannot exist in a vacuum. Enter the concept of Fair Use. Early law makers recognized that limited use of copyright material was essential for society to function. A teacher could copy parts of a book to teach in class. A reporter could quote parts of a speech for a newspaper article. Drawing this line has always been very gray and very tough for judges and lawmakers. Another tough area is parodies, spoofs and homages. Is even a blatant reference to another work illegal? Is the musical West Side Story a rip off of,  a homage to, or a blatant copy of Shakespeare’s Romeo and Juliette? Same question on US president Obama’s Hope poster? There are many examples that have fallen on both sides of the line.  Why should there be a line? I will leave this one to discuss over a beer or two, lets move on to….

Public Domain. Wikipedia has three definitions for culture. I will concentrate on the third one.”The set of shared attitudes, values, goals, and practices that characterizes an institution, organization, or group”, although it could be argued that all three state similar ideas. As I have said, all art has been influenced by the art before it, or more obviously, all art is influenced by “the set of shared attitudes, values, goals, and practices” that have come before it. All societies have decided that culture is important and worth protecting. Art and artifacts are exhibited in museums, galleries, and libraries for all to see^[7]. Unfortunately accidents can and do happen. Natural disasters and wars can destroy artworks. Luckily today we have a great invention called the Internet. Using the digital power of computers we can duplicate many works of art and distribute them to a wide range of locations for next to no cost. Using this technology we can easily preserve our art and culture for future historians and artists. But here we hit the copyright wall. Preserving our culture has, in large part become illegal. Copying culturally significant artworks has brought fines of millions of dollars, businesses shut down, and individuals thrown in jail. The other side of the coin is that this cost free copying can render the monetary value of artwork close to zero. In other words, with infinite copies available, each copy is not worth anything^[8].

All this brings me back to my original statement. There was a ruling in England recently (further discussion here) that said a photograph that only looked similar to the original infringed on the copyright. Now I know there are extenuating circumstances in this case, but it is a scary precedent. If this continues, no artist will be able to sell their art because it will infringe on some other art^[9]. I guess the big question is how can we let artists make a living while still allowing people to copy their work? The big media companies seem to be determined to convince governments to disallow copying. This is leading to a big backlash under the umbrella of “pirating”. Neither of these extremes is sustainable in the long run. I wish I knew the answer. I would be rich…..

January 26, 2012 | Categories: Business, Photography | Comments Off