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The Curious Cases of Copyrighting in Arts

 

Art is interesting to us because it makes us think about ordinary things differently or deeply. Also, and quite often, art creates controversy because it pulls us out of our comfort zone and confronts us. It also creates stories around it, giving people something to talk about other than the weather. If discussing the weather is boring and religion or politics are controversial conversation topics, then perhaps, art is a midway point of connection and communication. Its language is visual and hence, universal, yet art is often accused of being elitist and stand-offish. Conceivably, some of its notoriety is linked to the institutions of art economies and the unaffordable prices of the art market.



Considered an experience and a public good, art is a commodity like no other: it does not conform to being part of the mainstream popular culture like fashion, celebrity news, social media, blogging, etc. Even with the introduction of movements like Pop Art, Dadaism, Appropriation and Relational Aesthetics, which over time have been celebrated for closing the gap between art and non-art, art does not obey any one discipline. Its non-conformity comes from its capacity to criticize itself and to be able to subvert and comment on the popular culture despite being a part of it, or at least sharing the mediums, tools and formats with it.



Like any other case of public interest and piqued popularity, scandals related to artwork prices, theft, and copyright issues hold people’s attention, and are sometimes believed to be used for creating artificial hike and decline in prices of the art market. Such stories, fiction or fact, might even be used to gain popularity and fame for artists. Berger has written on the subject of mystification in art and the vocabulary used to write about artworks. Adding to the subject of mystification, it would be of interest to mention that, through these stories of mystery and glorification, we intensify the desire around the artwork to be seen, experienced, and perhaps bought. Many of these stories are real and engage head-on with problems of authorship in art or lack there of, since all artworks and their pertaining terms of licensing pose unique and individualistic concerns.



The over dramatic case of the Vantablack copyrighting is one such latest news being reported by social media and newspapers alike. Vantablack is a cultured substance with properties of extremely high light absorption, making it the darkest possible black color available for use in the market. The production and application of the material is mostly curtailed to the use in defense or aerospace sectors. Anish Kapoor is known to be the only artist today with a copyright license to use Vantablack as a color in his studio. This exclusive licensing has caused distress for other artists who also wish to have access to the material. And so, to the entertainment of the people around the world, a war of wits, gossip and online rebuke has ensued between the parties over the blackest black. In retaliation, the artist Stuart Semple has created the pinkest pink and the world’s most glittery glitter, being sold at the open market with the exception of rights to one man: Anish Kapoor. If you were to follow the story of the artist wars over color copyrights, despite your amusement, you might realize that the issue of copyrighting in the arts is a rather controversial one. On one hand, it aims to protect the labor and creative property of the artists but on the other hand, it opposes the ideals of accessibility and public interest, raises concerns about the role of art as a cultural agent, and negotiates the space between private commodification and public domain.




Case No 1: Copies without an Original


Auguste Rodin, the famous and prolific sculptor, was commissioned by the Fine Arts Administration in Paris in 1880 to create a monumental gate for a Decorative Arts Museum that was being planned at the time. It was dictated that the work be based on Dante’s poem, Divine Comedy (that describes the poet’s journey through heaven and descent into hell). Rodin worked on this project for ten years without really ever being satisfied by it or completing it. Since the plan of the Decorative Museum was called off as well, the artwork was never casted (in bronze) until 1921, three years after Rodin’s death.



In 1980’s, the National Gallery in Washington showcased a very large exhibition of Rodin’s work and, as part of the display, also showed a video of the plaster casting of The Gates of Hell from just a couple of years back. Rodin had been dead for over seventy years by that time. The plaster cast was one of the twelve editions that the State had a right to cast, as Rodin had left his entire estate to the French Republic upon his death. Gates of Hell had only been shown in parts, its figures selected and scattered throughout the practice of the artist, as the work became a major pool of investigation for Rodin.



In case of photographs, silk-printings, or etchings, multiple prints can be made without the presence of one original. Though, for developing copies, a plate or negative exist as the motherboard. However, in the digital age, the idea of the negative from which positives or copies can be developed is further simplified as a file on a computerized system needs only to be printed. In this case, instead of a negative, perhaps the file is the idea and the print is the physical form of the work. In the example of Rodin’s Gates of Hell, however, all the copies of the cast were made after the artist’s demise and exist without an original.


Case No 2: Appropriation


Andy Warhol, the illustrator, designer, celebrity, filmmaker and artist is mainly popular for his exercises in Appropriation. Appropriation is an intentional borrowing of existing images, materials, and objects for creating artwork with the intent of commenting, juxtaposing, or criticizing mass culture and artistic boundaries.  The most stellar example of the age of appropriation is perhaps that of Marilyn Monroe’s portraits, Marilyn Diptych, shown the same year as her death and illustrating her portrait from a pose in the movie, Niagara. The two sets of portraits carry the same image silk-screened, one in color and the other one in black and white, obviously referring to her life and death. Warhol’s choice of the portrait for this work makes it truly exceptional, for he borrows an existing image from her movie instead of photographing her. Even if he had intended to do that, it was impossible to do so in the event of her death. And in that very fact lies the success of the work. Marilyn’s photograph, as a memoir and a remaining document, validates her life and also her death. It becomes an original proof of her claim to fame as it is recognized in that very state by the cinema industry and the public. Repeating her image fifty times, as already experienced through advertisement of the film, further amplifies the industrialization of a person’s life and its products. In 1936, Walter Benjamin published The Work of Art in the Age of Mechanical Reproduction. He says:


“In principle a work of art has always been reproducible. Man-made artifacts could always be imitated by men. Replicas were made by pupils in practice of their craft, by masters for diffusing their works, and, finally, by third parties in the pursuit of gain. Mechanical reproduction of a work of art, however, represents something new.”



Today’s age of memes, cartoons and gifs, it might be challenging for us to fully comprehend the extent of the unconventionality of Warhol’s decision and how he was creating a precedence that was bold and, ironically, ‘original’.

 

Another work by Warhol, equally (if not more) contentious and popular at the same time to the Marilyn Diptych is Campbell’s Soup Cans, also from the year 1962. Legend goes that Warhol often asked people around him, friends and social acquaintances alike, for ideas on what to paint. And it was one such friend or a studio assistant who advised him to paint something he saw around him and is easily recognized. Warhol claims to have had the same lunch, a can of soup, everyday for years. The work is a series of 32 paintings of the Campbell’s soup cans, one of each of their flavors. Workman’s documentary on Warhol from 19903, interviews the General Manager of the Soups from Campbell’s Soup Company who comments on the involvement of Andy Warhol with their brand image. The repurposing of the soup can, logo and design as a painting, though with blatant infringement of the copyright law, surely served to help the company’s profile. And hence in 1964, instead of any legal confrontation from the brand, Warhol was gifted cases of tomato soup cans and a letter of acknowledgment from the company. Indeed, a small price for all that free publicity. Warhol was not always that lucky, though; he later on faced legal consequences for using a photograph of flowers from a magazine without the consent of the photographer and had to settle out of court for large sums of money.



Case No 3: Fair Use


In 1988, Jeff Koon came across a photograph on a post card that inspired him so much that he had the image replicated as a life-size sculpture. The photograph showed a couple holding a litter of eight puppies between them. The artwork was crafted in painted wood by religious icons and souvenir-making workshops in Italy. The instructions directed them to follow the image as closely as possible with specific color alterations, like the puppies had to be blue and the flowers had to be added to both the figures. The artwork ‘String of Puppies’ has three copies and an artist’s proof. It is also a work of great significance and reputation in Koon’s career. It got famous, made Koon a lot of money and he also got sued by the photographer whose image it was based on.



Art Rogers, who had shown some of his work in museums and had licensed the puppies’ image to be used on post cards, greeting cards and other small merchandise, was a middle-tier artist and photographer. He had also copyrighted his photograph and the postcard carried the copyright mark, which was allegedly torn off by Koon when the card was sent to the crafts workshop. So, when Rogers found out about the ‘String of Puppies’, he sued Koon and the gallery for copyright infringement. Koon admitted to have used the image under the ‘fair use’ defense. Use of material under fair use entails a limited and transformative value of adding new meaning, expression, learning or claim, to the original, for example in case of commenting, criticizing, or parodying. Koon levied that the artwork was a parody of the photograph since it was now a three-dimensional sculpture.



In, That Old Thing Art, Barthes explains that a “…feature which attaches Pop Art to the experience of Modernity: the banal conformity of representation to the thing represented.” Barthes further claims that Pop Art desymbolizes the object, such that it gives it a factual status of a self- sufficient and finite claim. It no longer refers to something other than itself and severs all connections from its source. The court did not buy into the fair use pretext and ruled in favor of Rogers. The ‘String of Puppies’ was not considered a comment or a criticism of the photograph on which it was based but a comment on the materialistic society, which the fair use rule falls short of covering.

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