Yesterday 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.