I’m reading a new book on intellectual property and the issue of copyright called Permissions. In this book, author and publisher Susan Bielstein talks bluntly about the issues that surround art and copyright. Specifically, (as an author and publisher) she extensively treats the issues involved in using photographs or art in books. She gives a brief primer on copyright, painting it with broad brush strokes that give the reader enough context to understand the issue at hand, but also hint at deeper study and even more context.
She paints a frustrating picture — the coveted copyright in the middle, with the different stakeholders pulling in their own direction. On one side, there are the artists themselves, the original copyright holders and their use of the fair use doctrine. On the opposite, are institutions (like the Museum of Modern Art) who either try to copyright their photographs of uncopyrighted works, or even assert copyright where they have none. On another side is the general public, who doesn’t really understand (nor do they truly care very much) about the copyright struggle going on over the very same images they use and see every day. Finally, the fourth stakeholder in copyright are the educational and non-profit institutions, who are used to the educational exclusion (where they can use copyrighted works for education without permission) and chafe at the tighter copyright restrictions (just don’t ask them to un-copyright their own work!).
For example- she wanted to include a famous photograph of Picasso’s dog in his studio. The photograph is copyrighted by the photographer (logically). However when charting her joinery to include this photo in the book, not only did she have to gain permission (and pay) for use from the photographer’s estate (The Brassai Estate), but also to to the Picasso Administration (in the US that is held via the Artist’s Rights Society) AND to the museum that currently holds the photograph (Reunion des Musees Nationaux). Two difference agencies asserting copyright to the same photo, with a third demanding payment to the use of its picture. Total fees paid: nearly $275. Just to include a photo in a book! No wonder less and less authors seem to be including photos or images in their books. Who truly has copyright for this photo? Logically the Brassai Estate because he took the photo. The Picasso Administration seems to have a flimsy case for copyright, as it is unclear what portion of the copyright, exactly, should go to Picasso. Was he there? Did he arrange the shot?
Are you confused yet? It’s the timeless question: What happens when an immovable object meets an irresistible force. The bedrock institutions are the immovable objects (either by longevity or size), and the irresistible force are the artists and copyright producers. The tug-of-war between them will decide the fate of the other minor stakeholders, education and the general public.
This is a war, and I have the awful feeling that whatever happens, whether the winner will be the immovable object or the irresistible force, it will be the rest of us that will lose out, whether it be through higher copyright fees, tighter restrictions, less free access for education, or even the fear of litigation. Somehow, this is a war I don’t think that we can win.
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