How can copyright exist in the digital era?

"Believe it or Not?"
How can copyright exist in the digital era?

Remix, mash-up, Web 2.0, and user-generated content are all common forms of expression in contemporary society. The 21st century world is one where digital expression of information is becoming indistinguishable from the data it is expressing. “Digital Media translate everything into data, waiting for an author or an audience (or machine) to reconstitute it. Images can be output as music or music turned into text, or created by an algorithm, or transformed by an anonymnous and far flung chain of spectators.” (Ritchin, 2009) Audio sampling reveals the basic code of music and pixels converted into RGB numeric data reveal the information embedded in a photograph. Can we continue to try to protect music and photographs with copyright laws in this digital era? Who owns intellectual property in a virtual world? Recent court cases involving Shepherd Fairey and Jeff Coons are raising the issue of whether or not copyright laws that served to promote creativity in the 20th century may be stifling it in the 21st century.

In order to understand the issues in contention we need to look at what copyright is. Essentially copyright is a set of rights granted to the author of a creative work (book, photograph, film, music, play, etc) at the time of creation. Copyright gives the author control over their creation by giving them exclusive rights to: perform, display, reproduce, distribute, and create derivative works. The importance of copyright laws is that it establishes an intellectual property whose value can be used to provide incentive for further creative production and it protects the artist by establishing a certain amount of independence from the patron who does not have control over content unless it is explicitly transferred in writing. Copyright laws are complex because they are designed to also protect society’s ability maintain free speech. Embedded within copyright law are provisions for the "for purposes such as criticism, comment, news reporting, teaching, scholarship or research."

Artists and news media have a long history of reproducing copyrighted works legally under the principle of “fair use”. Art from the beginning of the 20th century began incorporating copyrighted works as part of a re-contextualizing of objects. Marcel Duchamp’s ready-mades brought non-art objects into the world art as social commentary. Arthur Danto argued that Art had become Philosophy when Warhol elected to exhibit a box of Brillo pads in a museum. As art moved from modernistic ideals into postmodern philosophy, appropriation of copyrighted works became commonplace. Robert Rauschenberg’s “combines” and large lithographs and screen-prints utilized cultural artifacts from newspapers and magazines to reframe social conversations. Andy Warhol is perhaps the most well known artist to appropriate imagery in his adaptations of photographs of Marilyn Monroe and Jacqueline Onasis. In the 20th century, appropriation art was restricted to either collage of physical objects such as a cut out of a newspaper article or photograph, or a transformation of image from one media to another such as Warhols transformation of black and white photographs into silk screens and Rauschenberg’s direct image transfers.

The use of copyrighted materials in the highly insulated and relatively obscure world of “high” art culture populated by museums and galleries is an altogether different world than the one we live in on the internet. While art has commonly made superstars out of its appropriation artists, the concept of limited editions has served to restrict the direct competition with the original artwork. News media has always been allowed to generate a profit while enjoying free speech privileges. Free speech has been protected but commercial exploitation is not. The Internet seems to have lost its academic roots and become an ocean of consumerism whereby everything is seen as a potential commodity to be exploited for profit.

By 1981 Rauschenberg had decided to abandon image appropriation due to a lawsuit brought against him for copyright infringement. It seems his financial success had made him a target for litigation because his art had become commodity due in part to its very mechanical nature that lends itself to mass reproduction. Warhol’s estate has also been subjected to paying out legal settlements. Art in the age of mass reproduction is no longer considered a unique expression that is transformative, but rather is deemed commodity with massive profit potential.

So how do we evaluate digital appropriation and digital collage? When a magazine hires a graphic artist to create an illustration for their magazine cover is it okay for the artist to appropriate multiple copyrighted images (the photograph no longer exists in the post film era) and claim authorship over this new compilation? Can the issues debated in the last century be arguments for these new variations? Let’s take a look at a hypothetical scenario.
You are an art director for The New York Times Magazine and have commissioned a photo illustration to accompany a short article about exercise equipment and the proliferation of home gyms.

The artist you have hired sends you a funny, collaged image showing a laundry room that now also serves as a gym. It contains an amusing visual mix of appliances and exercise equipment. We see underwear drying on the Nordic Track, a woman stretched across both washing machine and dryer doing pushups, stockings and bras hanging off a treadmill, etc.

When you ask the artist if there is anything to be concerned about in terms of copyright, he says "No problem. I simply found a great room in an old book of Wegman photographs, turned it on its side, then flopped it. I used Photoshop to eliminate all of the furniture and the dogs, changed the colors of the walls, put in a rug from a House Beautiful magazine editorial on beach houses, then created a large table by cloning a piece of the floor... I changed the view through the windows, added curtains (and changed their color) from a Pottery Barn catalog, and used a photograph of a cool girl doing sit-ups that I found on Facebook (I changed the length of her shorts and the color of her hair and made her taller). Finally, I scanned in some images of gym equipment that I found in an exercise magazine and borrowed a few kitchen appliances from ads in some of my mom's old copies of Good Housekeeping. I used Photoshop layers to add everything to the room image. When I got finished it was mine! Believe me, no one will ever know the difference, and anyway, its art."

This scenario is ripe for debate because it deals with the very issues of fair use, art, editorial content, derivative works, adaptation, and transformation. Let’s take a look at each of these. First of all let’s look at fair use issues. A magazine, a book, or a museum exhibition are generally considered editorial frameworks and offer a sort of safe haven from copyright issues. A photographer who photographs an image in a public space can exhibit their work in any of these venues without it being considered an infringement on the copyright of peoples’ likeness or property because we value the protection of the “publics need to know”. These graphical representations are generally restricted to the transmission or depictions of actual events or a compilation that provides for “parody, or criticism”. The simple duplication of an image is not sufficient to justify protection under fair use.

In the 2006 ruling by the U.S. Court of Appeals, the justices established current standards for the fair use of copyrighted images based upon the principle of “transformation”. The court stated Koons appropriation of Andrea Blanch’s photograph transformed it because it "adds something new, with a further purpose or different character, altering the first with new expression, meaning or message."

But hold on a minute, should someone else be able to profit from the creation of a derivative work based in part upon my original work? Doesn’t this harm the incentive for working in the media arts? Collage or compilations can be copyrighted but they do not void the original copyright of the elements that are incorporated in the new work. The right to create derivative works rest solely with the original author unless the work is deemed sufficiently transformative to merit a free speech argument. In our scenario of the magazine illustration, I would have grave concerns over the designer’s attitude about their collage image. The responses from the designer seem to lack sufficient socially aware commentary. I am reminded of Paul Strands caution when photographing street people. He said “the (photographers) intent must be sufficiently humane to warrant the intrusion.

Although I can see legitimate arguments for seeing this collage as an infringement on multiple authors, the process utilized to transform the image along with the publishers editorial content attached with the image is sufficient in my mind to warrant a judgment that the collage is a transformation of the original into something new that is providing cultural criticism.

This transformational quality is at the very heart of user generated content and mashups. Society now has the tools of production necessary to download, reconstruct, and retransmit a totally new idea that is attached to original content. Fred Ritchin writes in his book After Photography , “Increasingly, much of the photographic process will occur after the shutter is released. The photograph becomes the initial research, an image draft, as vulnerable to modification as it has always been to recontextualization.” In text based literature we have allowed for the “quoting” of facts from original sources with appropriate attribution. It seems as if we are slow to recognize that a photograph and a song are literary texts worthy of “quotation” and reinterpretation. It is a natural human trait to take the parts and reconstruct them into new wholes. Stuart Hall showed us in the 60’s that natural function of culture is to re-contextualize or “recode” the objects of culture and to make it their own. We see this in oppressed subcultures. Symbols and signs take on new meanings. The Zoot Suit riots are an example of this from the Forties. Mexican Americans staked their claim through their protests of war rations on fabric to make a social statement about their 2nd class treatment by the dominant culture that expected them to serve in the army and fight to maintain the existing hegemony that was marginalizing them. They took the very symbol of white executive supremacy and recoded it into their own stylish symbol of pride.

The digital media world is transforming the whole issue of copyright. When a photograph can be seen as pixel data and sound referred to by its digital information, can the original expression remain unique? Is the publication of expression on the Internet making it “common-knowledge” to the point that it can no longer be protected under copyright laws? Is everything published on the web subject to celebrity status? Again we can look back at 20th century arguments such as the one in the case of Feist Publications, Inc. v. Rural Telephone Service Company, Inc. In this case the Supreme Court ruled that the collection of data in a phone book did not warrant copyright protection.

...In Feist, the Supreme Court rejected the "sweat of the brow" doctrine that provided copyright protection for databases and compilation based upon the effort use to created the compilation. Instead, the court decided that compilations and databases are protected by copyright only when they are arranged and selected in an original manner. Although the level of originality needed is not very high, the white pages of a phone books are not protectable because the selection of the data (all customers in a geographic area) and the arrangement of the data (in alphabetical order) were not sufficiently original as to come under the protection of the Copyright Act.

I think we are moving towards a world where Google can be seen as a modern version of a telephone book and the images, sounds, and text that are generated within its reference framework are the data that is freely reproducible under fair use doctrine based upon two significant questions:
1. Are You Creating Something New or Just Copying?
2. Are You Competing With the Source You're Copying From?

Of course these two questions require complex analysis that the text of a law cannot clearly define. We have a perpetual need for courts and lawyers to settle issues relative to the usage of appropriated imagery (data). But when you apply these fundamental questions to the scenario of the magazine photo illustration I think you can readily see that the compilation of these fragments of data is creating a whole new visual expression that is not in competition with the authors of the original image fragments. Again the 2006 Appeals court decision supporting the fair use of appropriated image clearly used these two questions in guiding their decision. Justice Sack wrote for the court:

"Koons asserts -- and Blanch does not deny -- that his purposes in using Blanch's image are sharply different from Blanch's goals in creating it" because Koons was using it as "fodder for his commentary on the social and aesthetic consequences of mass media."

The irony that is emerging in the courts and on the Internet is that corporations who are trying to strengthen copyright laws are actually encouraging consumers to violate it to some degree as long as they can retain all the profits. George Lucas has a website where he encourages users to generate their own star wars parody videos, but the terms of submission state that Lucas retains all copyright on the new works submission. Hollywood studios and advertising agencies now routinely offer consumers the opportunity to create their own commercials and trailers and offer the opportunity to publish these films. Corporations are actively participating within social networking sites. They see this as a powerful branding tool that binds consumers to their products, however when the profits decline they also routinely pull the plug. Michael Williams writes about this in his 2007 article “The Cult of the Mohicans: American Fans on the Electronic Frontier” published in the Journal of Popular Culture where he describes how fans are encouraged to develop fan sites to create a marketing buzz but then are sent cease and desist orders after the movies run in the theatres. Clearly there is a need to recognize the lack of competition with the original. When Warhol painted his cans of Campbell soup it was recognized that there was no threat to Campbell’s and they were likely the beneficiaries of the positive publicity. If we are to recognize that post-modern art embodies ideas over form and we recognize that copyright law does not protect ideas, then we can see a way towards transformation, both of culture and its laws that will guide us towards new heights of creative citizenship.



Sources:
“Editorial Use May Not Always Be Fair Use. “ (2006) www.photoattorney.com accessed online at: http://www.photoattorney.com/2006/01/editorial-use-may-not-always-be-fair.html

Ginsburg, V., & Throsby, D. (2006) “Handbook of the Economics of Art and Culture: Volume 1.”Netherlands: Elsevier

Feist publications, INC. v. Rural Telephone Service Company. 499 U.S. 430. U.S. Sup. Ct. 1991.

Hamblett, M. (2006) “Artist Koons' 'Transformative' Use of Photo Affirmed by 2nd Circuit.” New York Law Journal October 31, 2006

Norman, G. (1995) “What’s new Pusenkoff?” accessed online at: http://www.independent.co.uk/arts-entertainment/whats-new-pusenkoff-1594011.html

Ritchin, F. (2009) “After Photography.” New York: W.W. Norton & Company

University of Washington (2006) “Copyright©Connection” accessed online at:
http://depts.washington.edu/uwcopy/Using_Copyright/Compilations,_Music,_Images/Compilations.php

“U.S. Copyright Office.” (2009) accessed online at: http://www.copyright.gov/