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    Categories: Copyright/Intellectual Property

The art of the steal: When does a copyright go too far?

From CNN:

If you want to riff on the “Mona Lisa,” go ahead. Scratch a biro mustache on her. Give her a full beard if you like.

Don’t go drawing facial hair directly on the original, of course; that’s the physical property of the Louvre, and the museum’s conservators are likely to get very angry with you. But otherwise feel free to do your best or worst with Leonardo’s portrait of Lady Lisa.

You can copy it or adapt it; you can even rephotograph it and Photoshop your signature on to it if you want. The original is out of copyright, and has therefore become part of the global creative commons.

If you use a photograph of the “Mona Lisa” as a basis for your art experiments and then try to sell the results, though, be aware that that photographic image may be separately copyrighted material. (Photographers have rights, too.) And it should go without saying that if you make an exact oil-on-board copy and try to pass it off as Leonardo’s original, you may be charged with forgery. But otherwise knock yourself out. You are (almost, within carefully circumscribed limits) absolutely free.

. . . .

If you want to do something with Pablo Picasso’s “Les Demoiselles d’Avignon,” on the other hand, you are much less free. Newsweek hailed it as “the most influential work of art of the last 100 years” in 2007, when it was precisely 100 years old, but just because it was likely made before your grandparents were born doesn’t mean that it’s in the public domain yet.

In fact, that hoary old museum piece “Les Demoiselles” will be in copyright for several more decades, because copyright’s term has been extended considerably since Hogarth’s day, when it ran from 14 years from the date of first publication. Now the formula is life plus 70 — that is, until 70 years after the death of the author.

(The calculation is based on works providing for two generations of an artist’s family after his or her decease; I wish my grandparents’ pension plans had had similar provision.)

. . . .

Ownership of a physical work of art can be transferred in perpetuity (sold), but even if you had personally paid $100 million for a painting by an artist who either was still alive or had died within the past 69 years, you would not have the right to exploit the work’s image commercially; copyright would remain with the artist’s estate.

For your $100 million you get the painting with all its attendant aura, but that doesn’t mean you can stop the artist or the artist’s estate from making the same sum again by authorizing the use of its image on supermarket carrier bags. Every groceries-shopper could have a copy for small change.

. . . .

Copyright is a cornerstone of any democratic, progressive, free society that values and wishes to continue to enjoy the benefits of a knowledge-based economy.

“As the founders of this country were wise enough to see,” former register of copyrights Abraham Kaminstein told the United States Congress in the 1970s, “the most important elements of any civilization include its independent creators — its authors, composers and artists –who create as a matter of personal initiative and spontaneous expression rather than as a result of patronage or subsidy. A strong, practical copyright is the only assurance we have that this creative activity will continue.”

Most people agree that the world would be poorer without the works of Picasso, and in so far as his “creative activity” was supported by copyright, copyright must be a Good Thing.

But, you might ask, what is the “creative activity” of Picasso’s estate?

Link to the rest at CNN

Beg, Steal & Borrow: Artists Against Originality by Robert Shore, the author of the OP, is available on Amazon.

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