Friday, October 08, 2010

Love a painting but strapped for cash? Try the photo-approach to obtaining art on the cheap (caveat: in most cases, it's ILLEGAL)

I am simultaneously annoyed and bemused when I see people taking photos of art displayed in a museum, artwork after artwork after artwork. I get annoyed because their main concern is digitally recording the fact that they were in the physical presence of the art rather than actually observing, absorbing and hopefully engaging with the art and because it ruins the experience for the rest of us. (At that moment, I'm often reminded of those travelers feverently focused on getting that Great Wall of China or Sydney Opera House snapshot just to mentally tick-off "China" and "Australia" from their cultural to-do lists). Then I wonder, somewhat confused, what it is these frenzied art paparazzi do with the photos afterwards. I picture them showing their encyclopedic catalogue of photos to friends and family shortly before stashing the camera and/or photo album away in the bottom of a drawer and long-forgetting about the art they went to see but never really saw. It had never occurred to me, however, that someone would think about blowing-up one of said photos and hanging it up on their wall though that is precisely what a freelance journalist envisioned (she never went through with it) as she revealed in a recent article in The New York Times.

Her main concern regarding the photo-approach to obtaining "art" for interior design purposes was ethical; what prompted her to write the article was whether it was in fact legal. After consulting various lawyers and law professors, it transpired that in most cases, it's illegal to photograph works of art, even if the reproduction is for your own private use only or the photo is a reproduction of a reproduction. In the US, if a work of art was created before 1923, it's considered to be in the public domain which means you can photograph it without violating any copyright laws. "But if the work of art is more recent, the artist generally has the exclusive right to any reproduction, and the piece is generally covered by copyright law," (my emphasis added). The statement that artworks created after 1923 are generally protected by copyright is a gross generalization and the key date is not one -1923- but several: 1978, 1989, 2002 and above all, the 70th anniversary of the artist's death. From 1923 to 1977, published works were only protected if the artist first "published" the artwork in the US (i.e. reproduced or publicly displayed it though determining the outer boundaries of the term is a challenge) with a copyright notice and renewed the notice during the year of the 28th anniversary of the first publication. If protected, the copyright term was 95 years from the publication date but as of 1978, protected works created after 1977 are protected for the life of the artist plus 70 years from the date of death (with some exceptions). 

The formality of having to renew the copyright notice was abolished in 1992 but that didn't save the works published between 1923 and 1963 whose copyright notice was never renewed. According to a post on The Art Institute of Chicago's blog, "few artists remembered these deadlines and renewed their copyrights." What with the works that were published without notice and those that were but whose notice was never renewed, there must be a substantial number of relatively recent works that do not have copyright protection. It's not possible to summarise the intricacies of US copyright laws here nor am I in a position to do so (I'm not an IP lawyer!) other than to say that 1989 and 2002 also saw fundamental changes being introduced in the area of copyright law and, as before, protection turned on when and where a work was created and published and whether any applicable formalities were satisfied. It goes without saying that none of the above is intended to encourge the art paparrazzi to photograph art nor, I presume, is The New York Times' crucial distinction between violations and enforcement of copyright laws. The point I want to make is that copyright laws in the US are incredibly complicated and as a result, a significant portion of twentieth century art in this country has not been afforded the protection of the law. At least works published after 2002 automatically have copyright protection for the life of the artist plus 70 years from death (the shorter of 95 years from publication or 120 years from creation for works of corporate authorship).

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