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Volume II
Issue 9
January 2000 |
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Starting Over, Going Up and Coming Down by Anne M Carley So let's say you are a painter. You make paintings and show some of them through art galleries, sell some of them out of your studio, and have too many of them piled up in racks next to your kitchen table. Looking for new ways to bring your work in front of more people, you consider the Internet. It may seem impersonal, tech-y, and frightening, since it seems anything at all could happen to anything you put up. Or you're a composer of songs, or you're a poet, or choreographer, or photographer. This Internet that seems to be everywhere these days is just not looking very attractive to you. Maybe you would benefit from a fresh look at things - to see in what ways hardly anything has changed because of the Internet, and in what other ways things may be drastically different. First, to gain some background, you might want to review some underlying rules, from centuries-old legal precepts. For example, the law of contract governs business transactions, generally, and provides great flexibility, in theory at least. Almost any term of an agreement can be changed by negotiation between the parties. If Huge Publisher sends Unknown Writer an extractive contract, demanding all rights to everything UW has ever created, and promising a maximum of one hundred dollars, payable upon UW's death, that contract should perhaps remain unsigned until both parties approve some revisions. HP is not likely to propose any revisions that could benefit UW, which means UW must take the initiative. This process can seem unpleasant and intimidating, and of course some HP's are more than happy to cultivate such feelings in the party facing them across the table. But generally even the Hugest of Publishers will accommodate - even expect - a certain amount of give-and-take before their draft contract is ready for signature. There is also the law of property - that very old legal tradition that what's mine is not yours. If I shot that portfolio of nature photographs, then the negatives, the prints - for that matter, the portfolio itself - are mine, and thus not yours. If I put two of the images up on a website, they are still mine and not yours unless we negotiated a contract stating otherwise. In the early Seventeenth Century when Queen Anne instituted England's first copyright law (on which United States law is based) there was no Internet, but there were printing presses, which the Crown wanted to control tightly. All owners of presses registered with the government, and all materials printed were vetted by the government before they could be released. Unacceptable printed output was destroyed. The importance of free speech was dwarfed by the government's fears of sedition, unrest, crime, revolution. Later, the Colonists from across the pond revolted, and in their new nation's founding documents exalted free speech and freedom of the press. They also were careful to protect creative artists, giving them an exclusive right to their creative output for a defined duration. Article I Section 8 of the US Constitution, enumerating the powers of Congress, includes this: To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries. The length and complexity of today's copyright law might stun the drafters of the Constitution, but threads do run continuously from that document to the present law - primarily, the notion that the writings and discoveries of authors and inventors have economic value - are, in fact, a kind of property. Unlike the rights to other forms of property, the author's exclusive copyrights evaporate after a time (as do the rights of inventors, whose works are protected by the patent law). What has changed since the days of the Statute of Anne is the government's grip on the free flow of information. These days, an author (the term is interpreted broadly) creates intellectual property, protected by the law of copyright, and generally hers to do with as she pleases, without government intervention or inspection or confiscation. Yes, government pressure does exist, as with the threatened dissolution of the National Endowment for the Arts a few years back, because influential members of Congress disliked art that had received NEA backing in the past. But by and large artists and authors in this country can do as they like. Meanwhile, the moment your artwork, an "original work of authorship" was "fixed in any tangible medium of expression... from which [it] can be perceived, reproduced, or otherwise communicated," it became blessed: protected by the copyright law of the United States, and generally for your lifetime and for seventy years thereafter - a very long time. As long as your work has been "fixed" so that it can be perceived later by another, it is protected by copyright. You can fill out copyright forms and file them with the Copyright Office, and there are often good reasons to do so, but your work is protected by copyright since the moment of fixation, regardless of the formalities. Now, with the advent of the Internet, we are learning that the artist's choices have expanded. The painter can put up images of a painting on a website, to be visited - or ignored - by the world. So can the photographer, or the poet. So, for that matter, can the songwriter, the oboeist, the dancer, the actor, the rhetorician, the mime, by putting up recordings, video- and audio-, of their work. So what? Aren't you still just throwing the artwork away by putting it up on the Internet? Well, no. To recap, you have the law of contract, providing the right to negotiate acceptable terms with a publisher, a concert hall, a recording label, a gallery owner, or a website manager; you have the law of property and specifically the law of intellectual property - copyright - protecting your work from unauthorized copying and a host of other uses, all reserved for you. In other words, in some very important ways, the Internet changes nothing that existed before. What is different, of course, is the far greater access you give the world to your work when you make it available over the Internet. Is that all bad? Perhaps not, since expanding your audience is often an artist's high priority. Those of you familiar with the web realize, however, that what goes up on the Internet can come down almost anywhere thereafter: if you can find it with a browser, you can often grab a copy of it and keep the copy, offline. The copy may then go back up again: if driven by evil forces, a wrongdoing downloader can put that copy, altered or not, back up at a different website, perhaps credited to another artist, or serving a political interest abhorrent to the artist, or reconfigured and painted chartreuse. How to shield your work from these fates? First, remember you do have property rights in your work including the right to control its use. This means, for instance, that you are entitled to work out an arrangement with the website manager or the online gallery, under which you agree to put up only some of an entire work: one cut from a full-length CD, a low-resolution image of one watercolor, a still image from your performance, with an accompanying sound clip. It also means you can post terms of use with the materials you put up on the web, for example "you are welcome to quote from this essay, as long as you include this paragraph with my name and contact information and these terms of use." It also means that if someone exceeds the boundaries you have set, the law is on your side, and you actually do have some clout because of that. You can also delve into the various watermarking, header-contract and other technologies that exist to help a copyright holder restrict copying from the Internet of their work and its subsequent alteration or republication. You can also figure out what you have for sale, and find a way to use the Internet not just to preview your work but to sell a product based on your work (a CD or DVD of a performance) or the work itself (a fine art print from an edition of 20). There are Internet entrepreneurs and megastores out there, more than happy, for a small commission, to help you sell and collect payment. It may help to remember from time to time that some of your concerns are already familiar from the old-fashioned analog world. If someone invites you to hang your work in a group show in a nearby town next month, you probably want to find out who the other artists are before you decide to participate. Similarly, if someone invites you to put up your work in the context of a larger site, you probably want to investigate the managers of this site, its track record, and other artists whose work it exhibits. If the site-manager is on the other side of the world, you may have to do your research at a remove, but on the other hand, you are being given the chance to reach people on the other side of the world (and all points in between). The US government provides some excellent starting places for the artist curious about copyright and the Internet (and those places are on the Internet - more incentive, if you needed it, to approach the wired world). Additionally, from January through April of 2000, a series of six Town Meetings is taking place regionally across the US. The purpose of these gatherings is to provide a national forum for comment on the law of copyright, the doctrine of fair use, and the implications of digitized information and the Internet on traditional media, structural assumptions, and distance education. It might be interesting to see what other people are saying, whose passions rise above the others' and what issues are at stake. It might be useful to examine your own opinions and beliefs, in the bright raking light of heated public debate. It isn't too late to start over. Perhaps with more information and a better sense of context - of ways in which you still have power over your work and its distribution - you will come to value the Internet. It may never become your best friend, but it might not be your worst enemy, either. What you decide to put up on the Internet can come down, to lovers of the arts all around the world. Resources: The text of the US Constitution can be found at http://lcweb2.loc.gov/const/const. html For clearly presented Copyright FAQs for Artists, see http://www.arts .endow.gov/artforms/Manage/Copyright2.html For A Copyright Primer for Artists, including a linked Guide to the Visual Artists Rights Act, and definitions of "applied art" and "work for hire," see http://www.art s.endow.gov/artforms/Manage/Copyright1a.html Sponsored by the National Initiative for a Networked Cultural Heritage with support from the Samuel H. Kress Foundation, the first Town Meeting took place in Chicago on 11 January. On 4 February the Town Meeting moves to Syracuse, New York, followed by New York City on 26 February, Chapel Hill, North Carolina on 7 March, San Francisco on 5 April and Baltimore, Maryland on 18 May. The results of these meetings will inform the ongoing public response to the Digital Millennium Copyright Act of October 1998 one portion of which charged the Register of Copyrights to gather information and report to the US Congress about distance education and fair use under the copyright law. Specifics on the regional Town Meetings are listed at the NINCH site, including links for more information and reservations at each location. (Reservations are required, even though some locations have free admission.) http://www.ninch.org /copyright/townmeetings/2000.html The Copyright Office, part of the Library of Congress, offers clear explanations of the various kinds of copyright protection available, as well as free downloads of blank forms with instructions on their completion. http://www.loc.gov/copyright The entire text of the copyright law of the United States can be downloaded in pdf format from the Copyright Office site, or viewed on the web as hypertext from the Cornell University Law School's Legal Information Institute, found at http://www4.law.cornell.edu/uscode /17/ Section 102(a), setting forth the subject matter of copyright, ("...fixed in any tangible medium of expression...") can be found at http://www4.law.cornell.ed u/uscode/17/102.html About the Author: Anne M Carley edits this Newsletter and believes in standing up to Huge Publishers.
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