Monday, September 25, 2023

Why Is Copyright (Suddenly) a Hot Topic for Artists?

The last few years have raised important copyright issues and concerns for artists. There are three main factors which have impacted–and will continue to impact–how visual artists relate to each other, to art institutions, and to other intellectual property right holders when it concerns issues of copyright.

The first factor is our current economic recession. The recession has forced artists to seek out any and all monies owed to them regardless of amount, and many times, regardless of the professional repercussions they may engender. For example, previous to the recession, artists were hesitant to take legal action against any gallery or art collector, regardless of the monies owed, for fear of professional and artistic suicide. In other words, artists were willing to take cents to the dollar on art works sold, as well as wait months, and sometimes years, for full payment. The current financial recession has permanently impacted not only job prospects for individuals (including artists), but also drastically limited the availability of public funds for artistic projects. Furthermore, and going to the historic financial viability structure of artists, teaching jobs in academia have been reduced–and will continue to be reduced–at an unprecedented rate. How then do artists survive?

The second factor, education, is perhaps the most crucial. Visual artists are becoming aware of not only their legal rights, but more so artists are becoming educated as to the proprietary nature and value of their artistic projects. In other words, artists are realizing that their art projects may in fact be protected by intellectual property, but also, that their art projects can be leveraged like any other property right.

Third, visual artists who were not aware of the nature of intellectual property rights are becoming aware of them thanks to a very unpleasant experience, litigation. More and more, artists, other individuals, and corporations are suing artists — many times unjustly so — in order to protect not only their intellectual property (copyrights and trademarks), but also as a means of establishing a pro-property legal interpretation of copyright and trademark laws.

The education factor is extremely important and, in fact, ties in to the economic factor. Although a corporation must legally assess the nature of its assets and the property rights it may own, visual artists have historically not done so. Visual artists’ unawareness of the property and intellectual property rights to their artwork is due to three main factors. One, reluctance to seek legal representation and counsel as a means to obtain certain goals (here, distrust of lawyers and the judicial system come into play); two, visual artists lack financial means to obtain counsel and/or legal information and, three, the difficulty and impracticality in accessing legal information via physical libraries and/or educational institutions.

But this is changing. For one, more lawyers are entering the legal profession possessing an artistic background. This is paramount because artists are more likely to feel at ease with lawyers who understand the nature of their work as well as the intricacies and difficulties in conceptualizing and materializing the art work. Two, because of legal organizations like Volunteer Lawyers for the Arts, artists are now able to obtain pro bono representation, aided in large part by attorneys willing to do pro bono legal work. Third, the Internet, websites, blogging, Facebook, and Twitter, have had the biggest impact in educating artists. Where as previously an artist may not have known about a legal doctrine called Copyright, where to look for such information, or organizations and institutions that educate the general public in legal issues affecting artists, artists are now able to locate introductory information on law via the Internet. Simultaneously, places like VLA, the Stanford Fair Use Project, and the Berkman Center for Internet & Society can make available their information on copyright as well as classes and workshops on legal issues pertinent to artists. Lastly, I have noticed that many art schools and university/college art departments are increasing their students’ exposure to law and legal issues, in both a theoretical and practical sense. This is great news.

The factors mentioned above are crucial to understanding why copyright litigation has increased in the U.S. in the last few years. These factors also help us foresee how copyright issues and copyright litigation will continue to evolve (and increase) in the coming years. I also believe that the factors above are indicative of how artists are beginning to see their practices as inter-related to common business practices, perhaps better phrased as entrepreneurial practices. In other words, artists are realizing that in order to survive, they will have to depend more on their own financial means and their own artistic assets.


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Comments: 3

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  • Give copyright back to the authors

    Actually, copyright law itself is not that complex. The structure behind it is. Collecting societies, music publishers and record companies, who knows what they are doing? Imagine, you’re a small artist who wants to be famous. Sign here, sign here and sign here. Before you know it you don’t have any rights left, including income from gigs and merchandising. It used to be evident that we wanted to reward the creativity of people. Nowadays, it’s not that obvious anymore. My idea is that we should not discuss copyright law, but how to protect the performing, reproduction and any other rights of the music authors. Luckily I’m not the only one who is worried. It can’t be any coincidence that the Featured Artists Coalition was founded. They want the artists to have more control of their music and a much fairer share of the profits it generates in the digital age. But there is also another way. The internet is a promising marketing environment, fit for individual management of copyright and the delivery of rights on demand to users. In these circumstances the music authors are in full control of their rights. And is that not what it used to be all about? Giving the advantages of being creative to such persons? I hope the authors will be more and more aware of the fact that they have a strong legal position.

  • This article ignores the elephant in the room.

    The reason copyright has become such a big issue for certain art forms (e.g. music, photography) is because copying has become so easy. Copyright holders are ignoring the marketplace’s clamor for different products (made possible by the same things that provide for easy copying). There has been a dramatic increase in competition, pushing down prices. Suing your customers – especially when you refuse(d) to offer them the products they want at a reasonable price – is a failed business model.

    The market is changing, the Titanic is sinking. Instead of fussing about who moved your deck chair, artists need to figure which lifeboat to board, and what direction they should row. The old ways of doing business are GONE. Those who don’t adapt to the changing marketplace won’t survive.

  • #524 is exactly right: it’s a change in the material reality that is responsible for the “copyright wars.” Not that long ago, the reproduction and distribution of art and music was monopolized by publishers and the recording industry. Now, the reproduction and distribution of music is available to anyone at no extra cost as long as he or she has a computer and an internet connection. That change in material reality is perfectly sufficient to explain what’s going on. There are no more artists and frustrated artists going to law school now than when I began 30 years ago. Gutenberg changed everything about the production and distribution of books. Is it any wonder that PCs and the internet have done the same for every sort of digital information?

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