Reading list, 20 July 2019

Just the most amazing looking show, by an artist I've never heard of: Holland Cotter reviews Mrinalini Mukherjee's survey at the Met Breuer

Very well circulated, ticketed for future reference: Ahdaf Soueif's On Resigning from the British Museum’s Board of Trustees

The Great Wave: what Hokusai’s masterpiece tells us about museums, copyright and online collections today by Douglas McCarthy

David Shariatmadari, 'Shout queer!' The [British] museums bringing LGBT artefacts out of the closet, for The Guardian

A suit against the American immersive arts and entertainment company Meow Wolf alleges discrimination and unfair pay practices, including paying below the minimum wage (the company has 450 employees and is one of the most hotly watched in the immersive experience area)

Bookmarking a mental parallel to 'museums are not neutral' - Alexis C Madrigal on the collapse of the "we're just a platform" defence

In the NYT: What and Whom Are Jewish Museums For? (and who should direct them?)

Colleen Dilenschneider's latest: People Trust Museums… Even If They Don’t Visit Them

Exploring copyright in academia

Four interesting articles from The Chronicle of Higher Education, looking at copyright issues in relation to researchers from several different angles:

Pushing Back Against Legal Threats by Putting Fair Use Forward

A rarely discussed form of self-censorship happens routinely on college campuses. Professors and graduate students choose not to tackle academic arguments that involve music, movies, or other forms of popular culture. They worry that including relevant clips in their work means the hassle and expense of getting copyright permission for each snippet.

Two professors at American University argue that actually scholars (terrible word, I'm sorry, but it probably means something specific here) can use this material, without asking for permission, and even if they hope to profit from the resulting publications.

A professor's fight over Shostakovich heads to the Supreme Court

Music professor Lawrence Golan has been fighting for 10 years to have a statute that makes it prohibitively expensive for small orchestras to play certain pieces of music overturned.

The dispute that led to Golan v. Holder dates to 1994, when Congress passed a law that moved vast amounts of material from the public domain back behind the firewall of copyright protection. For conductors like Mr. Golan, that step limited access to canonical 20th-century Russian pieces that had been freely played for years.

Out of Fear, Colleges Lock Books and Images Away From Scholars (slightly hysterical header)

Wide online access to university collections is curtailed due to legal uncertainty around 'orphaned works' - items that are in copyright, but for which the copyright owner can not be identified or traced.

[UCLA] is sharing only a fraction of [its collection of Mexican and Mexican American Recordings] with the world because it believes most of the collection is made up of orphans, still covered by copyright. Full access is restricted to computers connected to the campus network. Off-campus users can hear only 50-second snippets. UCLA chose that policy based on its reading of fair-use exceptions to copyright law, which may permit reproductions for teaching and research. Going further would introduce "a level of risk that, given the current status of copyright law, was really challenging," says Sharon E. Farb, associate university librarian for collection management and scholarly communication.

What you don't know about copyright, but should

Profiles Nancy Sims, a copyright-programme librarian at the University of Minnesota Libraries who's 'there to help people on campus and beyond—both users and owners of protected material—understand their rights'. Her job includes advising faculty on their own copyright rights (copyrights? hmmmm).

The only pity with these articles; that there's not one devoted to open research and Creative Commons licencing.

Hoo-fricking-ray

Congratulations to LACMA, who have started releasing great big hi-res images of public domain works in their collection for unrestricted use.*

They join all the institutions who are releasing photos through The Commons on Flickr and the V&A and British Museum who offer free self-service downloadable images to qualifying users and publishers.

I've heard whispers lately that picture libraries in cultural organisations don't generate much revenue. I'm *not* saying they don't do a good and useful job, getting people to the images they want, getting people copies of those images and - some - helping with the copyright process. But the cost models - where you pay the same amount for an image that's already been digitised and to get an analogue item digitised, where you pay the same amount for delivery on a CD and delivery by FTP, where you're paying for someone to process your form when really a database can handle the job (or you could just face up to the right-click facts of life) - are broken.**

So how can we refactor picture libraries to focus on the good stuff - getting people to things and helping them use them - and take the focus off the dull stuff (forms and CDs)? I'd love to see some NZ institutions makes it as easy as LACMA, the V&A and the British Museum.

*with the caveat that you use them at your own risk and request that you acknowledge LACMA and trust me - I've written these pages, and that's as close as you're going to get to an institution singing a rousing chorus of born free, as free as the wind blows, as free as the grass grows ...

** user testing on a project I'm currently working on recently showed that some people assume if you can right-click and save a copy of an item, that means it's copyright-cleared. Now, that's interesting.

The hardcore life (and copyright)

Three things this week have gotten me thinking about copyright, fair use and trademarks in the arts.

First, the Historically Hardcore kerfuffle. Art student Jenny Burrows and copywriter Matt Kappler collaborated in 2009 to create three poster advertisements for their school portfolios, using the Smithsonian as their 'client'. Taking 'historically hardcore' as their theme, they juxtaposed current pop figures against historical figures




After the posters went viral this week, Jenny Burrows contacted the Smithsonian and, when they requested that the posters be taken down, removed all of their branding from them, replacing it with generic 'Museums - Historically Hardcore' strapline.




While I can understand the Smithsonian's position, it's still a somewhat joyless approach. Yes, brands have to be protected, and when you're an institution that's often under close political and public scrutiny, your reputation matters a lot. At the same time, a little humour and reciprocity could have gone a long way. I admire the grace with which Burrows and Kappler have handled this situation, which I very much doubt they anticipated when they started tossing ideas around.

Story on the Boston Innovation site

On the Behance Network

Jenny Burrows blogs about Historically Hardcore

And coverage on the DCist




Meanwhile in Manhattan, a Federal judge has found in favour of photographer Patrick Cariou in his copyright lawsuit against artist Richard Prince. Prince took Cariou's photographs, which first appeared in Cariou’s 2000 publication, Yes, Rasta, and used them in his own “Canal Zone” series. While Prince argued fair use, the judge found that there was little, if any, transformative element in Princes works, and that they had been created primarily for commercial purposes.

The Art Newspaper has a good article that digs into the details of the ruling and blogger and art dealer Edward Winklemann has an interesting take on the finding.




And finally, artist and copyright lawyer Alfred Steiner talks to The Millions about his work 'Substantially Similar' for the Drawing Centre's 'Day Job' exhibition, where artists were invited to submit pieces that showed how their day jobs influence their artistic practice. Taking Jeff Koons (another artist notorious for his appropriation work) as his starting point, Steiner suggests that "copyright antagonizes artistic freedom while providing artists no discernible benefit".

Congratulations

A little belated perhaps, but I wanted to note Bronwyn Holloway-Smith's win at the New Zealand Open Source Awards on Tuesday night.


The Open Source Awards recognise New Zealanders' contributions to open source projects, use of open source products, and promotion of the free and open philosophy.

2010 was the first year that an Open Source in the Arts category was run, and the finalists were:

• Bronwyn Holloway-Smith for Ghosts in the Form of Gifts
• Douglas Bagnall for Libsparrow, an installation piece entirely based on open source software that was shown at the Dowse.
• Joel Pitt and Will Marshall for Speed of Sound, a music visualiser used in live environments

Bronwyn describes her project in this way:

These objects are replicas of artifacts imagined as lost, hidden or misregistered during the Museum of New Zealand's tenure in the former Museum Building on Buckle St, now occupied by Massey University's College of Creative Arts. The objects have been created through a process of drawing, digital 3D rendering, and finally printing with an Open Source 3-dimensional printer – the RepRap.

To my mind, one of the most significant things about Bronwyn's project is that the works are released under a Creative Commons Attribution Share-Alike license and the design files can be downloaded from her website.

At the awards, I asked Bronwyn whether students at art school were being taught about copyright and licencing - their rights over their work, and the tools (like CC licences) available to them to give people access to view, re-present or remix their works. It's a topic I'm quite interested in, as is Bronwyn, as one of the founders of the Creative Freedom Foundation.

Bronwyn said that the topic didn't seem well-covered. I think that's a real pity. If art schools are training/nurturing/whatever-the-preferred-verb artists, they should be (IMHO) educating them about the profession, and copyright (as well as dealer galleries and auction houses and commissioning) are all part of the apparatus.

I cannot emphasise the first line enough

I wrote the following article on copyright for the most recent edition of the Christchurch Art Gallery's Bulletin.

Two observations and a note

1. I am not a copyright expert, and I don't pretend to be one. I have a working understanding of copyright, and it's an issue that comes up a lot in my work life and my non-work/free-lance/free-time life. I'm grateful to Lewis Brown at DigitalNZ for reviewing this article pre-publication. All mistakes remain my own, etc.

2. While writing this article, I bemoaned the inability to use hyperlinks. Obviously, these couldn't be included in the print publication, but I have added some here. I've left the original footnotes intact as well.

NB: Like all original text on this blog, this article is published under a BY-NC Creative Commons licence.

***

First, I should make it clear that I'm not a copyright expert, or a lawyer. Instead, I'm somewhere between an interested bystander and a participant: consideration of copyright is part of my day job at the National Library of New Zealand, an important issue in my interest in open data and the digitisation of cultural heritage materials, and something that often crops up in my blogging.

In this essay, I’d like to look at how copyright forms part of the day-to-day running of an art gallery. First though, some copyright basics.

Copyright was first recognised in England in 1709 with the Statute of Anne, which gave authors rather than printers control over the reproduction of their works. It is a legal concept that gives the creator of an original work rights over if or how that work is copied, distributed, shown, performed, communicated or adapted, for a set period of time.

Today, copyright applies to a wide variety of creative works, from screenplays to maps. In New Zealand, the Copyright Act 1994 applies to original literary, dramatic, musical and artistic works, sound recordings, films, communication works and the typographical arrangement of published editions. Under the Act, copyright in literary, dramatic, musical and artistic works lasts for the life of the author plus fifty years.

Perhaps one of the most widespread confusions around copyright is whether as a creator you need to register your work to assert copyright. You don't. The minute you press stop on your digital recorder, take the brush from the canvas, or stop typing, you gain copyright over what you’ve just made.

The copyright owner is almost always the first creator of the work. There are two main exceptions. When you make a work as part of your job, your employer is the copyright owner. And when someone commissions and pays, or agrees to pay, for a work (other than a written work) the commissioner is the copyright owner.

And now to copyright in action.

There is a difference between owning an artwork and owning the copyright on it. While artists can bequeath or assign copyright control to a gallery, or licence a gallery to use their work, this is relatively rare.[1]

By and large, whenever a gallery wants to reproduce a work from their collection or a work from a temporary exhibition that is still in copyright – to put in a book, on a poster or postcard, on their website, in their magazine or annual report – they must seek the artist's permission to do so. (A provision is made in the Act for reproduction for the purpose of criticism and review, with credit to the creator.)

This is entirely fair, but it's also very time-consuming. This is particularly the case when digitising artworks to make them available online.

Copyright is a significant consideration in the digitisation of collections, such as the work undertaken by Christchurch Art Gallery to make their collection available online. Searchable collections like this are invaluable resources for researchers, be they art historians, students, or bloggers like me. They are also labours of love and perseverance for collecting institutions. Before a work can be digitised and displayed online, its copyright status must be ascertained. Generally, if a work is out of copyright, it can be copied without permission. If it is still in copyright, its creator (or creator's descendants) must be contacted and asked for permission – and sometimes there’s a fee involved. Sometimes, searching for the copyright holder can be a lengthy and ultimately unsuccessful process. Spend some time in Christchurch Art Gallery’s online collection and occasionally you'll see a notice saying 'Sorry, image not available due to copyright restrictions.' The Gallery’s registrar, Gina Irish, says that "usually this is due to either not being able to track down the copyright holder, or, very rarely, permission being declined by the artist or holder".

Earlier this year, staff at Te Papa blogged about copyright clearance for their Collections Online. Adrian Kingston noted:

"Sometimes we have images for things we don’t have rights clearances for; sometimes we have rights clearances for objects not imaged. Sometimes we have permission from an artist or estate for one work, but not others. We try to align our digitisation projects with rights clearances, but the overlap doesn’t always happen straight away."[2]

And as Te Papa's rights manager Victoria Leachman observed, sometimes artists and copyright holders are simply not comfortable with having their works reproduced online. [3]

Personally, I find it both frustrating and saddening when an artist refuses permission. Frustrating because the internet is now the first place I go with questions, and saddening because these refusals limit the audience for an artist's work. I was discussing this with a colleague recently, who said she wasn't surprised I felt this way because I'm an optimist about the web. However, it can't be denied that allowing images of their artworks to be available online reduces an artist's control over the context in which their work is seen, and knowledge of who is seeing or using it.

In recent years, and largely in response to the opportunities and risks the internet poses, a new movement in copyright has emerged. Copyleft describes the practise of removing some restrictions on copyrighted works, so that copies and derivations can be easily made and shared.

The Creative Commons organisation is at the forefront of the copyleft movement. In the words of founder Lawrence Lessig, Creative Commons aims to make it easy for "people to build on other people's work, by making it simple for creators to express the freedom for others to take and build upon their work."[4]

Creative Commons has done this by developing a set of licences that are freely available for creators to take and apply to their own work. The licences are recognised in over fifty jurisdictions, including New Zealand. As Lessig writes, if content is given the CC mark this "does not mean that copyright is waived, but that certain freedoms are granted."[5] The licences are basically a pre-emptive granting of certain uses of a creator’s work.

The most restrictive licence Attribution-Noncommercial-No Derivative Works (BY-NC-ND) allows redistribution of a work, denies alterations to the work, permits only non-commercial uses and requires the copyright owner be credited. By applying this licence to their website, the artist collective et al. made it okay for me to reproduce installation shots of the exhibition that's obvious! that's right! that's true on my blog. I followed the requirements of the licence and used the images as et al. permitted; et al. didn't have to spend time approving a clearance request from me. It's worth noting that using this licence on their website does not prevent et al. from issuing another licence under different conditions – for example, to a commercial publisher.

In my own opinion, et al. is ahead of the curve here. A series of posts on the Collection Australia Network blog in September this year revealed significant philosophical and practical differences between the Australian arm of Creative Commons and the Australian copyright collecting agency Viscopy over the ways artists might licence their work for use and reproduction.[6] I'm not suggesting that artists should be forced to rescind control (or royalties) as a consequence of the rise of the internet. I do believe, however, that now is a good time for artists and collecting organisations alike to look at how they can make use of copyright and licensing agreements to help bring more New Zealand art to the world.

More information

Creative Commons Aotearoa New Zealand
http://creativecommons.org.nz/
Information about choosing and applying CC licences

Creative Freedom NZ
http://creativefreedom.org.nz
A forum for New Zealand artists’ views on issues that have the potential to influence their collective creativity

Make it Digital
http://makeit.digitalnz.org
A one-stop shop for information and questions about creating digital content, including digitisation and copyright

Copyright Council of New Zealand
http://www.copyright.org.nz
A non-profit society providing copyright and cultural based industries with a range of services.

Notes

[1] Unless explicitly stated otherwise, copyright in unpublished works automatically transfers in a will. This would apply in situations such as when an artist leaves their archives (sketches, correspondence etc) to a gallery.

[2] Adrian Kingston, 'Te Papa's collections and digitisation', 11 June 2009, http://blog.tepapa.govt.nz/2009/06/11/te-papas-collections-and-digitisation/ accessed 27 September 2009.

[3] Victoria Leachman, 'Digitisation, Copyright and Collections Online', 10 June 2009, http://blog.tepapa.govt.nz/2009/06/10/digitisation-copyright-and-collections-online/ accessed 27 September 2009.

[4] Lawrence Lessig, Free culture: The nature and future of creativity, London: Penguin Books, 2004, p. 282.

[5] Ibid, p. 283.

[6] Copyright series, Collections Australia Network, September 2009.
Part 1 http://keystone.collectionsaustralia.net/publisher/Outreach/?p=2736
Part 2 http://keystone.collectionsaustralia.net/publisher/Outreach/?p=2738
Part 3 http://keystone.collectionsaustralia.net/publisher/Outreach/?p=2741

Today's bright idea

If you want to skip a post that's essentially about copyright, why don't you skip over to this slideshow of works from the Rodchenko and Popova show at Tate Modern ...

This morning I was poking around in YouTube, looking for a copy of Len Lye's 'Rhythm' to play for a colleague. And it occurred to me - the web is full of Lye's film works, but there doesn't seem to be a legit place to watch them, or to download them from. While the Lye section of the Govett-Brewster Art Gallery has info about buying copies of Lye's film work, you can't watch any of it online.

The role of the Len Lye Foundation is to "to provide for the conservation, reproduction and promotion of the works of Len Lye and to make facilities available for research." It also administers the copyright for much of the material in the Lye archive. So my bright idea for today is this: how about you (the Foundation) make Lye's film works available online using a BY-NC-ND Creative Commons licence? This would allow people to freely share the films (by, for example, dropping them into blog posts, or playing them in the classroom) as long as Lye is credited as the creator of the work, but doesn't allow for remixing of the films, or for commercial use of the films. Surely this fulfils your mission beautifully?

Even better, but perhaps a step too far for comfort, would be using the BY-NC-SA licence. This maintains the condition of attribution, but would allow people to build on top of Lye's work, whilst also placing them under the obligation of making the work produced in this way available under the same licence.

Copywrong?

This Village Voice article caught my eye this week - Artist, Fan Clash Over What Constitutes Online Piracy. Artist Alex Grey has filed a copyright-infringement suit against Juan Pablo Fernandez, a big fan of Grey's work who buys prints legitimately, frames them, then resells them on Ebay.

It's not the on-selling that bothers Grey: it's that Fernandez is making digital images of his work available. From the article:

Whether online photos of artwork constitute illegal reproductions is a murky legal question, but one that is hugely important to sellers on eBay, CraigsList, Amazon, and other venues where people often resell their possessions. While publishing a photo of a copyrighted work for the purpose of reselling it certainly can be legitimate, it's a question of interpretation, says Paul Fakler, vice chair of the New York State Bar's intellectual-property section: "The courts have a lot of latitude on deciding what is fair."

I know this is an American example, but I had been wondering recently: do auction houses have to get copyright permission to reproduce artworks in print and online catalogues, or is this covered by the 'fair use' clause of copyright law? Does anyone know?