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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
Besser-© & Illegal Art, 11/15/02 2
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
Besser-© & Illegal Art, 11/15/02 4
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
Besser-© & Illegal Art, 11/15/02 5
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
Besser-© & Illegal Art, 11/15/02 6
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
Besser-© & Illegal Art, 11/15/02 7
Value of the Public Domain & Appropriation from pre-existing
works-• For creativity
• For social commentary
• For commerce
Besser-© & Illegal Art, 11/15/02 8
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
Besser-© & Illegal Art, 11/15/02 9
Mona Lisa--Magazines
Besser-© & Illegal Art, 11/15/02 10
El Condor Pasa
Besser-© & Illegal Art, 11/15/02 11
Romeo & JulietRobert Wise’s 1961 West Side Story
Baz Luhrmann’s 1996 William Shakespeare’s Romeo + Juliet
Franco Zeffirelli’s 1968 Romeo and Juliet
Besser-© & Illegal Art, 11/15/02 12
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
Besser-© & Illegal Art, 11/15/02 13
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
Besser-© & Illegal Art, 11/15/02 14
Historically, copying of Art was viewed as homage, or at least as perfectly acceptable commentary
Besser-© & Illegal Art, 11/15/02 15
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
Besser-© & Illegal Art, 11/15/02 16
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.
Besser-© & Illegal Art, 11/15/02 17
Art (particularly 20th century) builds upon prior Works
new works involve repurposing old
• Collage
• jazz
• Pop
• Postmodern
• Rap/Sampling
• Shakespeare
Besser-© & Illegal Art, 11/15/02 18
Picasso’s Violin (1912)
Besser-© & Illegal Art, 11/15/02 19
Duchamp (1919)
Besser-© & Illegal Art, 11/15/02 20
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)
Besser-© & Illegal Art, 11/15/02 21
Art & Popular Culture Images are part of our heritage
• Raw material for public discourse
• Appropriation is important for a democracy and a Civil Society
Besser-© & Illegal Art, 11/15/02 22
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
Besser-© & Illegal Art, 11/15/02 23
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)
Besser-© & Illegal Art, 11/15/02 24
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)
Besser-© & Illegal Art, 11/15/02 25
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
Besser-© & Illegal Art, 11/15/02 26
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)
Besser-© & Illegal Art, 11/15/02 27
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
Besser-© & Illegal Art, 11/15/02 28
Disney is nervy to sue others for appropriating its intellectual property
Besser-© & Illegal Art, 11/15/02 29
Hollings Bill
• All consumer devices sold in US must enforce copy-protect schemes
• What happens to Fair Use rights?
Besser-© & Illegal Art, 11/15/02 30
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
Besser-© & Illegal Art, 11/15/02 31
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
Besser-© & Illegal Art, 11/15/02 32
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
• Image Not Available
• Image Not Available
• Image Not Available
• Image Not Available
Besser-© & Illegal Art, 11/15/02 34
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
Besser-© & Illegal Art, 11/15/02 35
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
Besser-© & Illegal Art, 11/15/02 36
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, ...
Besser-© & Illegal Art, 11/15/02 37
Vaughn PortraitGilbert Stuart, 1795
Wa$hington
Besser-© & Illegal Art, 11/15/02 38
Copyright & Illegal Art
• http://www.gseis.ucla.edu/~howard/Copyright/
• http://www.gseis.ucla.edu/~howard/Copyright/commons.html
Besser-© & Illegal Art, 11/15/02 39
Besser-© & Illegal Art, 11/15/02 40
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)-
Besser-© & Illegal Art, 11/15/02 41
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
Besser-© & Illegal Art, 11/15/02 42
Content in Public Domain
• Shakespeare
• Ballads
• Fables
• ...
Besser-© & Illegal Art, 11/15/02 43
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)
Besser-© & Illegal Art, 11/15/02 44
The erosion of the public domain-
• What is it?
• What threatens it?
• Why should we care?
Besser-© & Illegal Art, 11/15/02 45
What’s part of Public Domain?
Still is• Air• Sunlight• Numbers• God• Ideas & Facts**
Was• Water• Land