|
The Coy Copy: Technology, Copyright, and the Mystique of Images a paper presented at the Town
Meeting on Copyright and Fair Use by Peter Walsh Since the beginning of history, the idea of the copy—the thing that is the same as another, yet different—has fascinated human beings. The original, as Plato described it in his dialogues, is the property of God. Copies are the attempts of human beings to imitate God’s creation. "To create is divine," as Man Ray put it, "to reproduce is human." In the visual world, copies have many forms. Plato sorted out some of them: he recognized the differences between the ideal form and the shapes of things in real life. Art works, for Plato, were another level—copies of real things that were themselves just copies of the idea form. Just as Eskimos name many varieties of snow, modern scholars of the visual arts recognize many more kinds of copy, and give them many names: the copy after, the version, the replica, the facsimile, the edition, the state, the reduced copy, the surmoulage, the studio copy, the cast, the copy by another artist, and the forgery. Modern technologies have brought still more variations: the engraving after, the lithograph after, the chromolithograph, the photograph of, the color slide of, the color reproduction, the digitized image. This talk is called "The Coy Copy: Technology, Copyright, and the Mystique of Images." It will attempt to show three things:
Let me turn to the first example: [FIRST TWO SLIDES] Here we have images of two European paintings dating from the early seventeenth century. Let’s see how many copies we can recognize here. First of all, virtually anyone would recognize that these paintings closely resemble one another, although, in the original versions, the one of the left is much smaller than the one on the right. A specialist would note immediately that these paintings are not by the same artist, and thus are not two versions of the same composition by the same artist. The quality of both is high, so it also seems unlikely that one painting is a student piece made after the other. The compositions are very close, but hardly exact, suggesting that pure forgery was not a motive. In fact, the painting on the right is by Caravaggio, now in the Vatican Galleries in Rome. The one on the left is a free copy after it by Peter Paul Rubens. It now hangs in the National Gallery of Canada in Ottawa. Art historians recognize both works as the legitimate creations of great artists. Rubens made a number of such copies, particularly after Titian, whom he greatly admired, both while he was a student learning his trade and later when he was a mature artist managing a large and commercially highly successful studio. [SECOND SLIDE ON RIGHT] This is not, as you might think at first glance, the painting that has been called "the greatest Italian Renaissance painting in America," This is a Baroque work, Rubens’ copy after Titian’s Rape of Europa," which now hangs in the Gardner Museum in my hometown of Boston. In this painting, Rubens actually borrows from two artists: the figures of the grieving Madonna and Mary Magdalene are based on a Deposition by Titian. Art historians would not be surprised or shocked by this. After all, from time immemorial, artists have adapted works by their contemporaries and by older artists for a variety of reasons. The Romans copied the works of the great Greek sculptors—fortunately for us, as the originals have nearly all disappeared. Michelangelo copied Massaccio and Schongauer, Vasari relates how Del Sarto’s copy of Raphael’s portrait of Leo X fooled even Giulio Romano, who had a share in the original. Rembrandt sketched Raphael’s Castiglione,Van Gogh copied Rembrandt, Millet, and Delacroix, and Picasso frequently copied or made versions of works from the past. What other copies can we see here? Clearly, the original paintings by Rubens and Caravaggio are not in this room: each painting was carefully copied by a photographer, a photographer who presumably took pains to come as close as possible to the original. The original photograph was probably then copied one or more times by mechanical methods, then one of these copies was sent to a publisher, who had a printer copy it again, make it into a printing plate, and publish it in a book. The images in the book were photographed yet again and made into slides, which now project their images on the screen before you. We can imagine other copies. Either or both paintings may have been reproduced as engravings, and these engravings themselves photographed and reproduced in another book. A student or studio assistant may have made versions of these paintings, or other artists may have adapted parts of the compositions for their own work, as Rubens did the Caravaggio original. These works, in turn, may have been photographed, produced as chromolithographs, slides, postcards, or books. These books may then have been reprinted, reproduced in new editions or Xeroxed and distributed to students in a seminar. One of these students might have copied the composition from the Xerox into a notebook. And so on, ad infinitum. Scholars of the visual arts have little trouble recognizing and following all these copies. They assign different values and meanings to them, depending on their intent, their importance, and the extent to which they conform or diverge from their model. The trouble with modern copyright law is that it recognizes only two sorts of copy: a "fair" copy, that is, one that does not violate copyright law, and an "unfair" copy, one that does violate copyright law. According to the U.S. copyright statue (section 101), a copy is any material object "in which a work is fixed by any method now known or later developed, and from which the work can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device." In fact, under U.S. law, even what we consider to be the original work is a copy, as the statue’s definition of a copy "includes the material object… in which the work is first fixed." In the case of literary work, the distinction between fair and unfair copies is relatively easy to sort out. The literary work in question is either copyrighted or it is not copyrighted (for example, if it’s author has been dead more than 50 years, the work is no longer copyrighted but is in the public domain). Copyright in all subsequent copies is transparent, that is, unaffected by the copying itself. If a work is in the public domain, the fifth, sixth, or seventh generation copy does not take it out of the public domain. Similarly, if a work is under copyright, subsequent printings, editions, translations, even movie and theatrical versions, do not alter the original copyright status. Illegal and unauthorized copies also do not change the status of the original. Even fair use and derivative works follow this pattern. Fair use in one case does not void copyright or authorize fair use in other cases. And a derivative work, which U.S. law defines as "a work based on one or more preexisting works" is always governed by the original. "Protection for a work employing preexisting material in which copyright subsists," explains the U.S. statue, "does not extend to any part of the work in which such material has been used unlawfully." All things change when we come to visual works. First of all, as we have already seen, U.S. law does not make a clear distinction between the original work of art and copies made from it. When the original copy is covered by copyright, subsequent unauthorized copies are illegal. The Rubens version of the Caravaggio, for example, was made around 1611, only a year or so after Caravaggio died. It is, under U.S. law, clearly a derivative work, and thus would have been illegal under current copyright law unless authorized by Caravaggio’s estate: Rubens work would be an unfair copy in this case. Yet as art historians, we see Rubens work as perfectly legitimate In fact, Rubens was doing exactly what artists have done probably since they began making art: copying and adapting what has been created before them. Things get even more complicated when we consider the copies made after these two paintings. Under international copyright statues, a photograph is considered a work of art, even a photograph of another work of art. The photographs of these two paintings, then, are simultaneously original works of art, copies of works of art, and derivative works because they are based on "preexisting material." Because the law does not distinguish between kinds of visual copies, it becomes impossible to untangle these three notions. These two paintings are now in the public domain. If they were books written by Caravaggio and Rubens, copies of them would be in the public domain. However, since they are paintings, not books, their status becomes ambiguous. Some copyright authorities, and the original CONFU guidelines, assume that this process of copying makes visual copyright subject to a kind of layering: that, unlike literary copyright, each time a work is copied photographically it adds another copyright owner. Many hold that the photograph a museum takes of a work of art in its own collection somehow confers copyright status and ownership to that work of art, despite the fact that U.S. law holds specifically that copyright in a derivative work "does not affect or enlarge the scope, duration, ownership, or substance of, any copyright protection in the preexisting material." U.S. law also holds that, in the case of derivative works, "copyright…extends only to the material contributed by the author of such work, as distinguished from the preexisting material employed in the work, and does not imply any exclusive right in the preexisting material." This makes sense in the case of literary derivative works, were such additions as prefaces, notes, illustrations, and the like are easy to distinguish from the original work. But how can it work for visual works, when the original, the copy, the photograph, and the derivative work are all more or less the same thing under the law? And where does the thread of image-making end? Since the most common methods of visual reproduction these days all involve photography, do lithographic negatives, Xerox copies, 35mm slides, and digitized images all confer another level of copyright on the image? The French symbolist writer Remy de Gourmont defined a definition as "a sack of flour compressed into a thimble." It is worth recalling that copyright law, more than virtually any other sort of law, depends on definitions to function. Therefore it is particularly important that the definitions not cramp meaning so much as to neutralize it. This clearly now is the case for image copyright under U.S. law. Draft: 2/22/98 Toronto
Town Meeting Program
|