The increasing complexity of copyright law and the tortured definition (and abuse) of “fair use” provoked the Metropolitan Museum of Art to host its second workshop on the subject at the College Art Association’s annual NY conference in February. Co-sponsored by the CAA, it was followed by a highly instructive (albeit complex) panel on fair use tied together by two eminent copyright scholars: the Honorable Pierre Leval – author of the fair use opinion which guides much of today’s readings of the law – and Bill Patry, Google’s Senior Copyright counsel and Consultant to the Library of Congress. Although the two politely disagreed with one another, both declined to pick a fight.
Presiding over the seminar was the CAA’s Director of Publications, Eve Sinaiko, aided and abetted by Susan Chun, GM for the Met’s Collections Information Planning and Cristina del Valle, the Met’s Intellectual Property counsel.
Re-use of property created by others, explained Sinaiko, “involves risk assessment, which is part of rights clearance” but “uncertainty goes with the territory.” Sinaiko claimed that the artistic community perceives as “downright theft” the appropriation of another’s creation for reuse in some fashion, even when parody or collage is the intent. Cited were legal cases involving such artists as Sherrie Levine, Richard Prince and Jeff Coons, the latter of whom had two different legal decisions handed down at different stages of copyright interpretation, demonstrating how slippery the slope is. For instance, where does copyright infringement leave off and plagiarism begin?
While focusing on illustrated material rather than text, the workshop nevertheless confirmed that many issues are shared. The so called “orphan works” ruling that may become law in the near future, was discussed, highlighting “due diligence” (“What is sufficient research” in tracking down a copyright holder?), the increased complexity and opportunity for infringement posed by the internet as well as “perpetual archival use” as offered by such groups as JSTOR.
And, in cases where the rights holders have been identified and rights are clear, there’s still the complexity of credit lines for photo and picture captions where ownership, copyright and subject matter all seek and demand equal time and space.
As the law does not distinguish between not-for-profit use and, say, licensed refrigerator magnets the CAA is prepared to offer a similar workshop tweaked to reflect commercial concerns.
