Arts & Culture » On Culture

Whose Idea Is It Anyway?/And Now for Another Perspective . . .

Legal Issues for Artists

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WHEN Tue 2/6, 6-8 PM

WHERE Chicago Artists' Coalition, 70 E. Lake

INFO 312-781-0040, caconline.org

MORE Registration required

Back in the winter of 2003, as President Bush was gearing up to invade Iraq, artist Dick Detzner got an idea for a protest piece for an exhibit at the Chicago Athenaeum, then located in Schaumburg. He went right to work, rendering it in the cheery and deeply ironic style that's become his trademark. George II shows an oil derrick gushing blood. George W. Bush, sporting a crown, is seated on a throne in front of it. After the exhibit closed, it occurred to Detzner that the painting might make a good New Yorker cover, so he sent along a photo to see if the editors would be interested.

When months passed without a response, Detzner assumed they weren't. So he was surprised when he spotted the New Yorker issue of May 10, 2004, at least six months after he'd made his query. The cover featured a large oil derrick in the foreground spouting blood--just like the one he'd painted--with four smaller derricks behind it. It was signed by Ana Juan, a Spanish artist whose work Detzner admired. "This came out, and I thought, damn," he says. "The same oil derrick, the same blood gushing." (A New Yorker rep declined to comment.) Detzner, whose reputation as a painter has been built on the cheeky appropriation of corporate icons like Mickey Mouse and the Pillsbury Doughboy (who he crucified), suddenly found himself on the other side of the copyright divide.

Detzner told this story last week to a standing-room-only crowd gathered at the Freedom Museum for a copyright primer conducted by the Chicago Artists' Coalition and Lawyers for the Creative Arts. (A follow-up seminar at CAC is scheduled for this week.) "It made me mad that the New Yorker, if they liked my idea, didn't use my execution of it," he said. What had happened? Could the New Yorker have fed Juan his concept? After mulling it over Detzner fired off an e-mail to her. Juan replied that she knew nothing of his submission; any similarity in the images was coincidental. Detzner says he believed her and that was the end of it. "I didn't think it would be practical to try to prove copyright infringement," he says. "I couldn't point to any actual lifting of the art. I think the cover was different enough to be her interpretation of the idea, and you can't copyright an idea."

Bingo, like it or lump it. The criteria for copyright, according to attorney Kristin Lingren (of Mandell Menkes Surdyk LLC), are authorship, originality, and the state of being fixed in a tangible medium of expression, like pen on paper. Copyright gives an artist the exclusive right to reproduce, distribute, and display the piece and to make derivative works from it. Those rights now last for the length of the artist's lifetime, plus 70 years. Infringement occurs when someone else does any of these things without the artist's permission, and it doesn't have to involve exact copying. Lingren cited a suit filed by Jack Leigh, the photographer who took the iconic jacket photo of the Bird Girl statue for the book Midnight in the Garden of Good and Evil, after an image not unlike his cover photo was used without his permission on posters promoting the movie adaptation. It wasn't an exact copy, but it had the same major elements--the statue with moss behind it--and the jacket photo had already been widely credited with establishing a strong identity for the book. The photographer charged infringement by imitation and the suit was settled out of court.

Although a work of art is automatically copyrighted the moment it's created, Lingren says she usually advises clients to formally register. For a $45 filing fee, registration puts the world on notice that you're the author of the work, puts you in position to sue if there's infringement (in most cases you must register before filing suit), and gives you a crack at a higher award.

The major exception to all this is "fair use," which Lingren and William Rattner (of Lawyers for the Creative Arts) refer to as the "mushy" part of copyright law. Fair use can be a defense if the borrowing is for reporting, scholarship, criticism, or comment, including satire. Factors considered include purpose (Teaching? OK. Selling stuff? Probably not.) and whether the borrowed work has been transformed into something new or is just lying there, its recognizable old self. Imaginative work like fiction is more protected than fact-based stuff. (My painting of Buckingham Fountain looks like your painting of Buckingham Fountain? Well, duh.) And stealing unpublished material is more egregious than taking published work. In every case, the amount and quality of what's been taken is considered, though there's no hard and fast rule on what constitutes a "safe" bite. Then there's the question of damages to the commercial value of the original work: when artist Tom Forsythe put Barbie in a blender for a series of photographs in 1997, Mattel filed suit, arguing that Forsythe's work would confuse customers and dilute their brand. (The court found in favor of Forsythe and ordered Mattel to cover his lawyers' fees, which totaled nearly $2 million.)

What about crediting a source? That might give you a defense against charges of plagiarism, but not copyright infringement, Rattner says. You have to have permission and it has to come from the copyright owner: the photographer in the audience who'd been given the OK from a museum security guard to snap a painting would be out of luck. Rattner says copyright has always been a matter of striking a balance between granting ownership and allowing that everything is built on what came before. Now, maybe more than ever, artists have a foot on each side of the issue. "They want to protect their own work," Rattner says, "but they want to use the work of others."

And Now for Another Perspective . . .

"It's OK to copy!" was the rallying cry of video artist and wild man Phil Morton, who joined the faculty of the School of the Art Institute in 1969 and created what would become SAIC's Department of Film, Video, and New Media as well as the nation's first BA and MFA programs in video studies. "Believe in the process of copying . . . with all your heart," he wrote. "Copying is as good as any other way of getting 'there.'" In the early 1970s Morton hooked up with UIC physicist and artist Dan Sandin, creator of the Sandin Image Processor (a sort of Moog synthesizer for video), in the promulgation of the Distribution Religion, a philosophy of sharing that was a precursor to today's open-source movement. Sandin made the plans for his processor available to anyone who would pledge to keep any improvement they made on it free as well, and Morton promoted a general anticopyright ethic he called "Copy-It-Right," the granddaddy of efforts like Copy Left and Creative Commons. Morton died in 2003, but professor Jon Cates has brought his work back to SAIC in the newly established Phil Morton Memorial Research Archive. In celebration of its opening, Cates will present a selection of Morton's work Thursday, February 15, at the Siskel Center.

Art accompanying story in printed newspaper (not available in this archive): photos/Talia Rogers/Perceptive Visions (Dick Detzner portrait).

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