Back here in A60 for the second Arts & Culture Club panel on intellectual property. The panelists include Gigi Sohn, President of Public Knowledge; Jeffrey Cunard, a partner at Debevoise & Plimpton, LLP; and Robin Batteau, an independent singer/songwriter/producer. The discussion is moderated by Sergio Muñoz Sarmiento, Esq., Director of Education for Volunteer Lawyers for the Arts.
The panel got off to a lively start, dividing along predictable pro-control/anti-control lines with Gigi Sohn representing the copyright reform viewpoint and Cunard carrying the banner for law and order.
Both Sohn and Batteau pointed out the advantage to artists of removing the gatekeepers and marketing to fans directly, with Sohn citing Radiohead’s In Rainbows as an example. Sarmiento asked about the tendency among artists and arts organizations to work without a contract. Both Cunard and Sohn (who has a legal background herself) said that they understood the motivations behind this tendency, but nevertheless urged caution and documentation whenever possible. A famous case along these lines was the controversy between Martha Graham and her company that erupted after the famous choreographer passed away.
Sarmiento next brought up an instance of a museum publishing actual Pollack images in its catalog for an exhibition of Pollack fakes, against the wishes of the Pollack estate. The consensus on the panel seemed to be that this was a pretty audacious invocation of fair use and might not hold up in the legal process. Batteau countered with the reality that companies will generally not spend a lot of money suing people who don’t have any money. There are two famous cases, both involving the artist Jeff Koons, that have served as benchmarks for establishing fair use. The key issue tends to be the extent to which an artistic work is transformative of any underlying work.
At this point the conversation turned to rap music and samples, and by extension, peer-to-peer file sharing. Sohn mentioned that Warner Music has just hired Jim Griffin, who has been advocating for a while for a system in which consumers would pay ISPs an extra fee every month to download all of the music they want, which apparently the RIAA has to this point been resisting. (Similar measures have been adopted or proposed in France and Canada). Cunard claimed that copyright bodies treat all works of art similarly except for music, because music ownership is so complicated. (More complicated than film? That would be surprising.) Sarmiento next asked about legal ramifications associated with blogging. The Electronic Frontier Foundation apparently publishes a legal guide for blogging, which should be helpful.
An audience member asked about orphan works, which are works that are still under copyright but whose owner is deceased or out of business. Using the work in such a situation involves a risk management calculus that recognizes that, should the copyright owner unexpectedly come out of the woodwork, the owner could sue for statutory damages (i.e., punitive fines that can reach up to $150,000 per count for willful infringement) or seek an injunction against the display or performance of the work. There is a bill coming before Congress that would tweak the copyright code to limit damages from such a situation to reasonable compensation arising from the use of the work. The bill might also contain some measures to establish some form of a small-claims copyright court, for relatively obscure artists who nevertheless want to protect their rights.
Another question from the audience asked how artists can best be educated about their own rights, and specifically about preventing theft via the internet. Batteau claimed that this theft actually doesn’t happen that much, because the only real way to make money off of an obscure artist’s work is through advertising, but advertisers are very scrupulous about getting rights because of fear of litigation. In fact, this kind of theft can actually be somewhat beneficial to an artist’s career through an exposure perspective. (I am assuming they’re not including plagiarism in this definition of theft.) Sohn commented that artists need to start thinking differently about how they are compensated, and advocated the virtual tip jar model as a more market-oriented solution.
In response to another question about the theater and dance worlds, Cunard said that directors are increasingly asserting copyright privileges in certain works. This brought the conversation back to the question of written contracts defining roles for the creators involved. Sohn wrapped up the panel by talking about how many more items than you may think are copyrighted, including furniture, textiles, wallpaper, and there is even a movement now to copyright fashion design. However, panelists pointed out that a lawsuit is not necessarily the end of the story–in the case of overreaching by the suing party, the internet can be a great tool to rally public opinion against the action and convince the plaintiff to reconsider.
That’s it for the Arts & Culture Conference! Hope you enjoyed the real-time account. If you think this is a format I should consider in the future, do say so in the comments.