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Intellectual Property, Commerce, & Technology

News: Faculty in the Press

The Santa Fe New Mexican

October 02, 1998, Friday

SECTION: Pasatiempo; Pg. P-58

LENGTH: 1089 words

HEADLINE: Grab it from the Internet, but is it legal?

BYLINE: Dottie Indyke

BODY:

Is it legal for an artist to cut a photograph out of a magazine and use it in a collage?

The answer is, it depends who you ask.

According to Santa Fe attorney Saul Cohen, a national expert in copyright law and the arts, it's no problem at all.

"I've never heard of someone getting in trouble for using something in collage," he said.

Collage is a recognized art form, Cohen said, which couldn't be created without appropriating the images of others.

"I totally disagree," said attorney James N. Talbott of Malibu, Calif., who specializes in legal issues related to visual arts and the Internet. "Collage is a derivative work. You can't use images without a license or permission. Technically, it's an infringement, but is there likely to be a claim? Probably not."

Legal issues surrounding copyright and the arts -- whether music, literary or visual -- are at best murky, and according to Cohen, the field is fraught with mythology.

There's the myth that a creative work must be registered in order to be protected. In fact, copyright is automatic "once an original effort has been started and some aspect of it has been fixed in a tangible medium (including those for use with computers)," according to an article by Thomas G. Field, Jr. of the Franklin Pierce Law Center.

The present law, which was adopted in 1976 and became effective in 1978, protects an original work for the life of its creator plus 50 years. Once the copyrighted period is over, the work reverts to the public domain and may be freely used.

"Copyright does not protect themes or concepts -- only the expression," Cohen said. "Anyone can paint Mt. Taylor, as long as they don't copy someone else's painting of Mt. Taylor."

But things get a little trickier with the introduction of the Fair Use doctrine.

Fair Use stipulates certain circumstances under which copyrighted work may be borrowed, such as in criticism, comment, news reporting, teaching and scholarship. Though the concept seems straightforward, interpreting it is anything but, requiring a judgment of what constitutes the essence of the original, what percent is appropriated and in what manner.

One of the commonly held misconceptions about fair use is that there's a mathematical formula that can be applied; for instance, that you're safe if you alter an original work by 20 percent.

"The fair use calculus is uncertain," Talbott said. "There are no easy answers."

Commercial, as opposed to nonprofit, use tends to make the court look more carefully at claims of copyright infringement. Likewise, copyright holders who stand to lose substantial money -- Playboy and Disney are often cited -- fiercely defend their ownership rights.

Another reason for vigilance is to protect what is unique about a creative work; the Georgia O'Keeffe Foundation is a good example.

Director Elizabeth Glassman said she knows of no instance in which an O'Keeffe image was appropriated by another artist, but the foundation is very strict about all uses of O'Keeffe's paintings.

"Both O'Keeffe and Stieglitz believed very strongly that works of art should have their own integrity and should only be used as works of art and not as an illustration of something else,"

Glassman said. "We don't want people out there to see casual uses of the images and think they can do it, too."

Since O'Keeffe's death in 1986, there's been a proliferation of commercial products incorporating works of art; thus, Glassman said, the foundation must be even more watchful.

"I agree with people who call it 'graphic traffic,' " she said. "The original work of art has to somehow maintain its aura of authenticity."

Under the Fair Use doctrine, satire is a legitimate use of another's creative work, but once again, the devil is in the details.

Attorney Cohen cited the case of photographer Annie Liebowitz versus Paramount Pictures, in which the studio manipulated a Liebowitz photo, placing a man's head on Demi Moore's body. Given its satirical intent, Cohen said the case could have gone either way though the commercial use factor favored Liebowitz.

Ultimately, the court ruled for the studio but in general, determining what constitutes satire is hardly a clear-cut matter.

"If you wanted to take one of my photographs and reproduce it as a silkscreen and underneath you wanted to type a very ironic statement, you couldn't do that without my permission," said James Enyeart, director of the Marion Center for Photographic Arts at the College of Santa Fe.

"Simply making an ironic statement is not sufficient. A political cartoonist can do it because he's creating an original work. But if you simply took a photograph someone had made for "Newsweek," that's a violation of copyright, as well as an unethical act."

In his article, Thomas Field wrote, "Work does not have to be identical to infringe copyright...The legal test of infringement is "substantial similarity" -- which translates (roughly) into whether an ordinary observer would recognize a work as copied in whole or in part from an earlier one.

"Artists occasionally ask if it is OK to base a painting on, for example, a magazine photograph...such questions are not easy to answer. An artist is unlikely to be sued for using a relatively small element from another work -- particularly if it is used only for reference and not copied in detail."

The safest course of action, Field wrote, is to not copy without permission or confidence that the original is in the public domain.

In the age of personal computers and scanners, it is easier than ever to appropriate others' artwork. While the same copyright principles apply to the Internet, the practice of clicking on a piece of computer artwork and downloading it is commonplace.

"I always have people calling me and saying, 'They took it from me,' " said Internet legal expert James Talbott. "The answer is, 'Prove it.' And usually they can't. The real question is what's borrowed? If you take three or four pixels (picture elements) from the Internet, are they original enough to be copyrighted?"

In his Gallery Practices classes at the College of Santa Fe, James Enyeart talks extensively about the morass of issues involved in ethics and appropriation. Though passionately protective of original work by photographers, Enyeart would not like to see the law made clearer.

"We want it amorphous," he said. "That insures democracy for artists. The waters need to be tested all the time."

GRAPHIC: 1. Photo illustration (detail) of collage by Suzanne Vilmain

2.Detail of collage by Suzanne Vilmain

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