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Who’s the ARS now? Google vs. Miro

Miro LogoYesterday I had no idea who Spanish Artist Joan Miro was.  But I found out, after Google paid tribute.   It was Miro’s birthday.  I saw Google’s tribute logo (at left), wondered about it (it’s a bit of a game with Google to guess what their logos represent), and clicked through. Yesterday, Google also acceded to requests  to remove the celebratory Google logo from their site after the Artists Rights Society, representing the Miro family, complained it was a copyright violation.   Apparently the ARS would like to make sure that other artistic noobs like myself continue to remain unaware of Miro.

More importantly, though, the issue points to the heart of what is, and is not, fair use of copyrighted works.  Fair use is the doctrine which outlines when it is permissible to quote from, copy, or use elements of literary, musical, artistic, or other kinds of expression.  Caveat:  I am not a lawyer.   You should seek a lawyer if you want definitive answers on this issue. Having said that, Wikipedia has a great page on fair use.  These two items jumped out at me:

The practical effect of this law and the court decisions following it is that it is usually possible to quote from a copyrighted work in order to criticize or comment upon it, teach students about it, and possibly for other uses. Certain well-established uses cause few problems. A teacher who prints a few copies of a poem to illustrate a technique will have no problem on all four of the above factors (except possibly on amount and substantiality), but some cases are not so clear. All the factors are considered and balanced in each case: a book reviewer who quotes a paragraph as an example of the author’s style will probably fall under fair use even though he may sell his review commercially. But a non-profit educational website that reproduces whole articles from technical magazines will probably be found to infringe if the publisher can demonstrate that the website affects the market for the magazine, even though the website itself is non-commercial.

And under the heading common misconceptions…

Acknowledgement of the source makes a use fair. Giving the name of the photographer or author may help, but it is not sufficient on its own. Note that plagiarism is a matter of professional ethics, not of copyright — copyright law protects exact expression, not ideas, and so while citing the source for an idea prevents plagiarism, it is not necessarily needed to avoid infringing copyright if exact words are not used. On the other hand, one can plagiarize a work that is not protected by copyright.

Google’s use of elements of Miro’s work may be plagiarism, but doesn’t seem as if it’s a copyright violation.  Ethically, there’s nothing wrong with plagiarism as part of a tribute, in my opinion. Legions of birthday speech givers would be in trouble, otherwise.  The ethical problems arise when you blatantly copy others work without attribution. 

Moreover, there is a long standing precedent amongst artists of quoting from others work.  For thousands of years, new generations of artists have copied, quoted, or imitated the work of prior artists.  That’s how students learn technique.  It’s an accepted part of what you do in art school, and that’s not about to change.  Chris Boyd writes:

Nobody cares, certainly not the artist, because it has been an accepted part of artistic development and learning the ropes since the dawn of time, and really came to the fore during the middle and late periods of the Renaissance. Miro himself would have been subject to the same artistic grounding. Unless the Miro people want to start trailing round all the art schools where similarly "derivative" works can be found. In fact, they’d best call for all the Art courses on the planet to change the way they work, or face the wrath of their legal people. Bloody students.

So why make an issue of it now?  Digital copyright has been a hot topic for some time, especially in the art world.  The proceedings of this symposium in 1999 are very informative. They certainly seem to illustrate that artists, and people in the art business are aware of the issues surrounding copyright, and wrestling with how to address them.  And as higher quality digital reproductions become available, protecting artists becomes more urgent.

My opinion?  The problem is not copyright and art.  The problem is the ARS, and their mission:

Artists Rights Society (ARS) is the preeminent copyright, licensing, and monitoring organization for visual artists in the United States. Founded in 1987, ARS represents the intellectual property rights interests of over 30,000 visual artists and estates of visual artists from around the world (painters, sculptors, photographers, architects and others).

ARS is a corporation which licenses intellectual property. They exist to protect and license the IP which they own. In order to do so, they are behaving in the same fashion that a corporation protecting a trademark would.  However, art and trademarks are different things.  Their over-zealous behaviour puts them at risk of making themselves the equivalent of a patent troll, but in the artistic world.

{ 9 comments… add one }

  • Jonathan Bailey April 21, 2006, 6:57 am

    I've always suspected that these rights clearinghouses, such as ARS, RIAA, MPAA, etc. have done more to hurt than help artists. I think this proves the point. Google tries to celebrate an artist's birthday, does a tribute to him and gets a cease and desist for their effort. How many thousands, if not millions, of people have no clue about the existence of Miro's artwork that would have if the logo had remained?

    Honestly though, the case is weak anyway. I am not a lawyer either, but you can't copyright an idea or a style. It has to be something in a fixed medium. They weren't trying to pretend that Miro painted the logo, kind of hard sine Miro died in '83, nor were they indicating a relationship that didn't exist. I don't see much grounds for copyright, trademark or any other kind of infringement.

    Certainly though, any potential case is overshadowed by the benefit it could do to the Miro name.

    It's just a case of a rights clearinghouse earning their keep by sabotaging the artists they are supposed to represent. It's a bad move for everyone.

  • Gary Will April 21, 2006, 7:19 am

    It's certainly not plagiarism, since the source was acknowledged — very publicly. It probably was a violation of copyright, but it was one that would might have benefitted everyone. But for all I know, the artist might have opposed the corporate use of his art, which would make it understandable for his family to be upset. Creating a corporate logo out of somone's art without their permission isn't something I would generally want to encourage, even if you can get away with it legally. But that doesn't mean that ARS isn't another lawyer-run parade of twits like the RIAA or CRIA.

  • Alec April 21, 2006, 9:08 am

    You know Gary, I hadn't thought of the angle that the artist may have opposed corporate use of his art, but if that were the case, then why wouldn't ARS just come out and state that? It would certainly be more compelling, in my opinion, to know that the artists express wishes were being followed.

    And yes, I agree that creating a corporate logo out of someone's art would be bad behaviour. My view of this instance in which the modified Google logo was used for one day of the year to celebrate the artists birthday is that it's more like an individual creating a personally relevant greeting card for an admired person than a corporate rip-off of copyrighted material. Whew… how's that for run-on sentence?

  • Mathew Ingram April 21, 2006, 12:52 pm

    Alec, I'm glad you wrote about this, because you essentially wrote the post that I would have written if I had had the time. I think copyright clearing houses like ARS tend to make things worse rather than better, and this strikes me as a particularly egregious example. Google's use — or adaptation — of the work falls squarely within fair use, not to mention the fact that it is a tribute and not a ripoff. Making a big deal out of it cheapens the whole idea of artists' rights.

  • MatthewS April 21, 2006, 3:36 pm

    Alec,

    I'm shocked that you didn't know about Miro. Google "Twittering Machine".

    I disagree with you on the Fair Use notion. I am not a lawyer either–but I am an artist and I did teach a University class in copyright law in the arts.

    What Google did is the creation of a "Derivative Work". Copyright protects the notion is that artists have the right to control the use of their work. Derivative work is covered under the Artist's copyright. Fair Use assumes that there will not be mass delivery of that has the potential to harm the artist (or estate's) ability to enjoy the benefits of creation (selling work). Google DID stand to gain by use of Miro's work through secondary advertising revenue.

    Google's use of Miro's imagery clearly did not fall under the umbrella of Fair Use because of its mass circulation of the work and the possiblity of monetary gain from that circulation.

    I don't like the MPAA or RIAA attack on fair use (I should be able to make a legal copy of a movie I bought as a back up. I should be able to listen to music I bought legally from my iPod or on my stereo in the CD player). But I shouldn't be allowed to share that music with thousands of others. I shouldn't even be allowed to share PART of that music with thousands of others without permission. The same goes for art work. If they had created their own unique Miro-like images instead of using pieces of existing work, they would have been fine.

    Google should have requested permission from Miro's estate. They probably would have recieved it.

  • Alec April 21, 2006, 8:13 pm

    Hey Matthew,

    Thanks for the informative comment.

    I did Google "Twittering Machine", but Google thinks it's a work by Paul Klee, not Miro.

    More to the point, though, I also Googled the three paintings that are alleged to have been copied. Google's logo allegedly incorporated images from Miro's “The Escape Ladder,'' 1940, “Nocture,'' 1940, and “The Beautiful Bird Revealing the Unknown to a Pair of Lovers,'' 1941.

    I don't see it. I don't think most people would either. Their logo doesn't appear to be derivative, nor does it appear to overtly include any recognizable elements of the three paintings. Something similar to the eyeball in the logo appears as one of many eyeballs in the third painting.

  • MatthewS April 22, 2006, 8:22 am

    I always did get Klee and Miro mixed in Art History! Still, Twittering Machine is pretty cool.

    Here are the issues. You may not use elements of another's copyright work without permission. The exception to this is that art that has fallen into public domain. For those that are still privately owned 1) You may quote small portions of work or bodies of work for the sole purpose of education and criticsm. 2) You may not have financial gain from making use of someone else's work. 3) You may not widely circulate a portion of another person's work unless it is for criticsm. Google fails the circulation test. Fails the financial gain test (although we could argue about this). And it clearly wasn't using Miro's elements for the sole purpose of education or critiscm. This is even the case if you couldn't redially see where the elements came from.

    Simply because you can devine where the elements were taken from over an Internet optimized image of the artwork, doesn't mean its not true.

    They were in the wrong and, while I can't abide by the tactics taken by groups like ARS/RIAA/MPAA, this action was perfectly fair.

  • Alec April 22, 2006, 5:40 pm

    So, Bro'… have you looked at the paintings the Google logo was allegedly derived from?

  • Chris Nolan.ca April 23, 2006, 11:40 pm

    You may be interested in the Google Logos blog – http://googlelogos.blogspot.com/ which I recently came across where they give back story on the logos and additional bits.

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