1 besser-© & illegal art, 11/15/02 copyright & illegal art howard besser nyu moving image...

Besser-© & Illegal Art, 11/15/02 1

Copyright & Illegal Art

Howard Besser

NYU Moving Image Archiving and Preservation Program

http://www.gseis.ucla.edu/~howard


What is Copyright About?

• The Congress shall have power ...to provide for the ... general welfare of the United States 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;

-US Constitution, Article 1, Section 8 (underlining added)

• (exclusive control) Incentivizing creators to create more• (limited time) Establishing a vast and rich public domain for

use as new creative materials, as well as for public edification and appreciation


What is Copyright?

• Copyright is a delicate balance btwn users and creators, but is supposed to be clearly oriented towards the public good

• Copyright is NOT an unlimited Economic Right• Copyright is really a temporary monopoly right

granted to creators in order to fulfill the societal need to increase creativity

• The Copyright monopoly is temporary, then works become freely available for all purposes


Copyright is tempered

• Works are supposed to eventually enter the Public Domain– resources freely available for all members of society to do whatever

they want with them

– no permissions or fees required

– no tracking of what you read or use

• Even works still under copyright are subject to Fair Use– Subject to certain conditions, can re-use works for education, satire,

political commentary

• First Sale


Yet, the Content Industry would like to eliminate both the Public

Domain and Fair Use• Aggressively pursuing legislation

– Term extension/Mickey Mouse Law

– Returning out-of-copyright works back to copyright

– Elimination of Fair Use and First Sale for digital works

• Technologically controlling downstream use• Licensing• Other forms of Contract Laws


Value of the Public Domain & Appropriation from pre-existing

works-• For creativity

• For social commentary

• For commerce


From University of Florida clarinet studio web siteHttp://www.arts.ufl.edu/music/clarinet/images/mona-lisa.gif

From a web page devoted to Star Wars humorHttp://humour.naboonline.com/images/monalisa.jpg

From web site for a head shop in the United KingdomHttp://www.the-head-shop.co.uk/images/The-Original-Mona-Lisa.jpg

Mona Lisa Socks, For sale online at http://www.studiolo.org/Mona/MONASV13.HTM#LIST

Mona Lisa Bathing Suit, For sale online at http://www.studiolo.org/Mona/MONASV13.HTM#LIST

Mona Lisa


Mona Lisa--Magazines


El Condor Pasa


Romeo & JulietRobert Wise’s 1961 West Side Story

Baz Luhrmann’s 1996 William Shakespeare’s Romeo + Juliet

Franco Zeffirelli’s 1968 Romeo and Juliet


From Metro, Silicon Valley’s weekly newspaperIllustrated article on Disney world wide web honcho Patrick

Naughton’s arrest for child pornogaphyOctober 7, 1999

Mickey Mouse Tattoo Mickey Mouse with a JointCreated for web site for a head shop in the United KingdomHttp://www.the-head-shop.co.uk/images/Mickey-Mouse-def.jpg

Mickey-general


From Subvertise.orgHttp://www.subvertise.org/img_big/195.gif

Mickey Mouse PornographyWww.pornocchio.com/free-sexsites/alltoossex/mickey.html

The Crucifixion of Mickey MouseFrom web site The Food Court, an anime fan site

Mickey-satire


Historically, copying of Art was viewed as homage, or at least as perfectly acceptable commentary


Christ & CrossChrist Carrying the Cross

Hieronymus BoschOil on Panel, 1485-1490

Christ Carrying the CrossHans Multscher, 1437

Christ Carrying the CrossThomas de Coloswar

Tempera on pine, 1427

Christ Carrying the CrossCornelis FlorisMarble, c.1570


Madonna & Child

Adoration of the Child with Saint JohnJacopo di Poggibonsi

Tempera on panel, c.1443-45

The Adoration, with the Infant Baptist and St. BernardFra Filippo Lippi

Tempera on panel, c.1432Wilderness Adoration of the Child with

Saint JohnJacopo di Poggibonsi

Tempera on panel, c.1443-45.


Art (particularly 20th century) builds upon prior Works

new works involve repurposing old

• Collage

• jazz

• Pop

• Postmodern

• Rap/Sampling

• Shakespeare


Picasso’s Violin (1912)


Duchamp (1919)


underlying image from Thomas Hoepker’s “Charlotte as seen by Thomas,”Originally published in German photography magazine Foto Prisma in 1960

Kruger’s Untitled 1990 (It’s a small world but not if you have to clean it)


Art & Popular Culture Images are part of our heritage

• Raw material for public discourse

• Appropriation is important for a democracy and a Civil Society


Fair Use is Disappearing

• Criminalizing Fair Use

• Copyrighting DB contents in perpetituity

• Proposed Legislation (USCITA, etc.)

• The 1998 Digital Millenium Copyright Act

• The 1998 Sonny Bono Term Extension Act


Time before works enter public domain

Law Duration1709 British 14 years

1790 US 14+14 years renewal

1909 US 28+28 yearsrenewal

1976 US 75 years (corporate)life+50 years (individual)

1998 US 95 years (corporate)life+70 years (individual)


Lengthier Copyright--too complex to comply

Date Term

Published 1923-63 67 years if renewed

Published 1964-77 28+67 years

Created before 1/1/78 Life+70 years or-12/31/02 if not published

-12/31/47 if published before end of 2002

whichever is greaterCreated after 1/1/78 Life+70 years (95/120

years corporate)


Works that should have already entered the Public Domain (but didn't)

• Virginia Woolf: Jacob's Room

• Film -- Sherlock Jr.

• F. Scott Fitzgerald: Hot and Cold Blood and Invasion of the Sanctuary

• Zane Grey: Code of the West, Steelhead, Tappan's Burro,The Vanishing American, and Down into the Desert

• Ben Hecht: Fingers at the Window

• Rudyard Kipling: Independence and London Stone

• P.G. Wodehouse: Jeeves, First Aid for Dora Heart of a Goof, Leave It to Psmith, Magic Plus Fours, No Wedding Bells for Him,The Return Of Battling Billson, Rollo Podmarsh Comes To, Ukridge Rounds A Nasty Corner, and Chester Forgets Himself


Works that should have entered the Public Domain in the next few years

(but won't)• Irving Berlin: Blue Skies (2002)• Harry Woods: When the Red, Red Robin Comes

Bob, Bob Bobbin' Along (2002)• Oscar Hammerstein II and Jerome Kern: Ol' Man

River and Showboat (2003)• Mickey Mouse (2004)


Eldred Case

• Sonny Bono Term Extension is unconstitutional

• In support of the challenger’s case, the five major national library associations and ten other groups have submitted an amici curiae (friend of the court) brief asking the Supreme Court to rule that the extended term of protection for copyrighted works is unconstitutional. In addition to showing how the law exceeds the “limited times” of protection authorized by the Constitution’s Copyright Clause, the brief highlights the substantial harms that flow from keeping works under copyright protection almost perpetually, thereby stifling the public domain.

• -Press Release, May 21, 2002


Disney is nervy to sue others for appropriating its intellectual property


Hollings Bill

• All consumer devices sold in US must enforce copy-protect schemes

• What happens to Fair Use rights?


www.digitalconsumer.org advocates confirming consumer rights to:

• Time-shift content

• Space-shift content

• make back-up copies of content

• Translate content into diff formats (e-book becomes audible for blind)

• No technological barrier should deprive one of their Fair Use rights


Content Industry Plans

• [advocating legislation that] “guarantees publishers’ control of not only the integrity of an original work, but of the extent and duration of users’ access to that work, the availability of data about the work and restrictions on forwarding the work to others” -- Peter Chernin, News Corp President (owner of Harper-Collins) quoted in Publishers Weekly, May 2001


Strong Content Control Threatens Creativity

Imagine Creators:

• Having no public domain to draw upon

• Having to negotiate rights for every clip, every drawing, every still image, every sound sample

• Having to renegotiate all these rights every time they redistribute it in a different form or in a different media

Difficulty of clearing rights affects Completeness of Content

• Image Not Available






Use of IP Laws to inhibit free speech and stifle creativity

• The Wind Done Gone• E-Toy• Leonardo Finance vs

Leonardo Arts• Jeff Koons case• Barbie• Scientology vs.

Netcom

• Fans sites (Star Trek, Harry Potter)

• 2 Live Crew• Negativland and U2• Contract with America• Snow White & AIDS• Disney and Dan O’Neil• The Rio player


What has copyright become

• The larger trend -- moving long-standing common-law or constitutional rights into the arena of person-to-person business transactions, where these rights no longer apply

• licensing eliminating fair use– privacy

– international arena

– increasing time before work enters public domain


Content Industry Wants

• A world of consumers

• Minimal interference from content producers who may raise alternative voices

• Culture becomes a mere commodity, and discourse around it is tightly controlled

• A world where they maintain power, control, ...


Vaughn PortraitGilbert Stuart, 1795

Wa$hington


Copyright & Illegal Art

• http://www.gseis.ucla.edu/~howard/Copyright/

• http://www.gseis.ucla.edu/~howard/Copyright/commons.html


Content Industry Myths

• Recording labels speak for Music Industry on © issues (Pho, Love, …)

• MPAA speaks for independent filmmakers

• Publishers speak for writers on © issues (ask Tasini)-


Creators/Users commonality

• Make good use of content created by others

• Want widest possible distribution of content

• Benefit from moves away from perpetual “locking up” of content

• Have interest in works persisting over long periods of time


Content in Public Domain

• Shakespeare

• Ballads

• Fables

• ...


Importance of Info Commons for Content

• Common Heritage (philosophical)

• New Knowledge incorporates Old (progress)

• Derivative Works rely upon pre-existing Works (creativity)

• Social Commentary (free speech)


The erosion of the public domain-

• What is it?

• What threatens it?

• Why should we care?


What’s part of Public Domain?

Still is• Air• Sunlight• Numbers• God• Ideas & Facts**

Was• Water• Land

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