June 10th, 2009
In keeping with this month’s Auckland Photography Festival, the Creative People’s Centre is hosting a free afternoon seminar on legal issues for photographers. The seminar takes place at 1pm on June 16th at the Depot Artspace, Devonport, with arts lawyer David McLaughlin covering issues specific to the photography in regard to copyright, contracts, moral rights and commissions.
David McLaughlin is an arts lawyer with a legal expertise across a wide spectrum of art forms. David has his own practice McLaughlin Law www.mclaughlinlaw.co.nz and has acted as an advisor for the Depot for many years. David also works with the Creative People’s Centre (CPC) to bring resources to the creative sector.
Following the highly successful music law seminars for NZ Music Month in May, this time CPC aims to provide practical information for photographers, and encourage them to become savvy in the legalities of being a practising artist. The two hour seminar will equip the participants with facts on how to take full control of their work and to protect their rights. Participants are encouraged to come prepared with any questions, as there will be time for open discussion.
The seminar is free to attend, though it is recommended to RSVP.
For more information or to RSVP call 9632331
For more information on the Creative People’s Centre, visit the website at: www.cpc.org.nz
Copyright issues have certainly had an airing with the recent attempt at law change in New Zealand with the now-scrapped Section 92A amendment, which would attempt to protect music and video copyright holders (arguably to the detriment of the public).
Some more photography/art based copyright issues are being raised at the moment with wrangling over two prominent art producers – Richard Prince and Shepard Fairey.
Fairey creates poster-like works with big blocks of primary colours and large text exhortations such as “Hope”. That tag appears on the work causing most controversy which has a picture of Obama looking like he will indeed bring hope to the US, and possibly the universe. The problem for Fairey is that Associated Press recognised the Obama picture as being styled on one of their photographs and has started a law suit. Fairey feels he is entitled to use it without attribution because of Fair Use rules (which allow portions of copyrighted works to be used for education, critique and creative works). Incidentally, Fairey is currently dealing with vandalism charges for allegedly postering the work in Boston.
Fairey is perhaps not the best thinker on issues of copyright since he appears to allow himself Fair Use use, but when others parody his own work he gets the lawyers out. He also was quoted, in defence of using a Cuan artists’ work for another of his own works, as saying “Well, how would I ever pay this guy anyway because he’s in Cuba?” (The guy subsequently contacted him and was paid around $1000 according to the Mother Jones article cited below).
Fairey started out as a street artist, bringing issues (among others, an anti-war stance) to the street and has recently created posters for “Shut Down Guantanamo” but at the same time runs a company Obey Giant (after his first well known work around wrestler Andre the Giant), which has apparently claimed that only he has the right to use the word Obey in art works. he also shoots his own way of working in the foot somewhat with this quote about Walmart selling his work on teeshirts: “the reason I get pissed off about stuff like that is because I didn’t build up the resonance for that image just to hand it off to someone to exploit.”
More info on Fairey see Mother Jones article
Also not very good at self-defence when appropriating is Richard Prince, who claims to use ‘small portions’ of photographs by Patrick Cariou, whose work he describes as “not strikingly original” (he reworks 30 of the documentary photographs of Rasta culture from a book called Yes Rasta).
Cariou has filed a lawsuit against Prince which may or may not be related to the fact that Princes works fetched between $1.5 and $3 million.
These lawsuit outcomes will be significant both for the right of artists to appropriate or rework material, and for the right of artists to have some form of ownership or control over how their work is shown or used.
As I understand it, copyright law came about to try and help the originator of material get the most benefit from their creation, so that others could be prosecuted if they damaged the income of the originator by reselling without permission. Problems arise when copyright owners want to maximise profits by extending their copyright ownership in ways that conflict with the public interest (if I have a music cd or vinyl album, do I have to pay again to get it in mp3 format? Do works that have become essentially public domain, still have restricted uses – eg images of mickey mouse; the song “Happy Birthday”;)
Certainly, copyright and ownership of work has become such a complicated topic that it is hard to fathom for many people (many of the criticisms and comments about the above cases attack the artists as being sub-par or otherwise are completely distracted from the actual issues around appropriation; many of the excuses for pirating music and video are lame at best. Interestingly, very few comments have addressed the issue of the subjects in Cariou’s works, that are then, in Princes’, put alongside erotic or pornographic images – see Debra Frieden comments here), and if it doesn’t meet the real expectations of the public (when corporations are the only ones with time/money to understand the laws, use them (and help re-write them) for their own benefit), it may need a complete rethink, and such things as the ability to easily and accurately copy anything from music to 2 dimensional art (and perhaps soon 3d object,with the advent of 3d printers) is speeding this up.
Finally, the thing that started this item off was a series of posts in the MyArtSpace blog for april – this has items on the Fairey and Prince lawsuits and also a shockingly rock-star view on music copyright in an interview with Geoff Tate of Queensryche.
August 4th, 2008
A photographer and a street artist have come to odds over a series of photographs taken of graffiti in central Auckland streets.
The photographer held an exhibition at an Auckland gallery earlier this year, in which she showed her large black and white prints depicting stencil and spray paint art. The exhibition was brought to the attention of one of the artists, when a friend of his recognised his work. A discussion ensued, leading to animosity and, now, to legal action.
Graffiti has long been a subject of interest to photographers, from an artistic, documentary and sociological perspective. Issues such as this are inevitable yet complex in their resolution with aspects of authorship, legality and originality coming into the mix. On a more subjective level, perceptions and stereotypes also often inform people’s opinions
As a photographer and an Auckland dweller with an interest in local street art I found this issue of great interest. I made contact with both the photographer and the street artist with the view to doing an interview with both for this blog.
The photographer got back to me with the below response. The street artist has elected not to respond to these questions specifically but has pointed me to an entry on streetarse.co.nz, which discusses this issue.
The work in question has been taken off all the associated websites and so can’t be linked to, however from memory it was a fairly straight-on representation of a stencil of a zebra. I struggle to find the photographer’s mark in this image, it is as good as a direct copy of the stencil. The stencil itself was spray-painted in public space with, I’d imagine, a decided lack of permission. Therefore it is illegally placed in a public area, which I would have thought would render intellectual property claims null and void, if not legally at least ethically. The author of the post on streetarse disagrees, as does the street artist’s lawyer.
A large part of the street art aesthetic is the rejection of the formal art world, the structure of galleries, royalties and dealerships. There is something a little odd about a street artist being so comfortable with engaging the services of a lawyer when they disagree with the way their public art is received or treated. However they are the creative behind these noteworthy artworks. (Although I’d be interested to know whether the original artwork was derived from someone else’s photograph?)
A reoccurring point on the aforementioned blog post from the street artist seems to be the idea of the photographer profiting from the efforts of others. However, as referenced in the answers below, producing and exhibiting these prints could hardly be considered a profitable enterprise. At an estimated average of $300 per print, the prints alone for the two exhibitions would be over $3000. The gallery takes a commission of any sales of course, and then there’s all the associated costs of promotion and soforth. Purchasing and developing film is increasingly expensive – the photos are shot on a medium format film camera – at the cheapest this would be another $30 per roll, probably more. A lavish profit is a pipe dream in such a scenario.
Many thanks to the photographer for responding to the following questions. Any comments, opinions or discussion would be most welcome.
What was your motivation in creating the artwork/s in question?
Being a long term resident of Ponsonby I was aware of interesting stuff appearing and felt it was important to make a record of it. This became part of an on going body of work I had been making for about seven years.
Would you acknowledge any other people’s work in the creation of your artwork?
Yes and I offered to.
In terms of creation of your own artwork, where do you draw the line in using the artwork of others?
What is the intention of your artwork?
To document and make a visual acknowledgement of this, graffiti, stencil work, tags and writings that were disappearing. To give an example; one piece of written work, was removed within an hour or so. They are putting it out there in a public place as public art….surely this is of sociological interest.
How do/would you feel about your artwork being used in others artwork?
It would depend on the artists intention. It’s a case by case call.
Can you rate the following in degrees of importance in regards to your artwork;
financial gain, communication, recognition?
Totally naff question…..
Do you really believe I could rich off this project?! Even if I sold out I would barely cover my costs and forget an hourly rate for 7 years of shooting, processing and printing.
I believe that communication is highly important but mostly these are a type of beautiful archive.
Where do you think that the (physical) public domain begins and ends?
I understood that anything outside that is not private property is public domain. Obviously there are issues of integrity and respect to be considered. I would not photograph a drunk man asleep on the footpath, etc. The irony is that these images were made with respect for the practice and a strong desire to keep a record of it.
In this particular case, how do you feel that your work has been treated and what injustices, if any, have you suffered?
I feel frustrated that they could neither listen to nor see my intention here. I was prepared to acknowledge them and give them prints. Ultimately I could gift this project to the Auckland Museum, Gallery or Library in the future.
Are you happy with the choices you have made regarding these artworks?
I felt the gallery was bullied and then acquiesced. I still stand by the body of work. My intention was to honour and record the practice of street art and what it communicates.
Would you give any advice to people in similar situations?
Keep talking – communicating.
July 7th, 2008
June 8th, 2008
May 18th, 2008
The Bill entitles visual artists to receive a royalty payment each time their original artistic work is sold on the secondary art market, through any auction house, gallery, dealer, or any other intermediary or professional involved in the business of dealing in works of art. The resale right will not apply to the first sale or transfer of art work, and it will not apply to sales of art work between private individuals.*
There is a podcast of an National Radio programme on the Artist’s Resale Right available here (link goes straight to mp3 file). This programme features discussion with Intellectual Property lawyer David McLaughlin and dealer gallery owner Michael Lett. It also elicits some response from New Zealand artists about the bill.
The other bill is not from New Zealand but America: the Orphan Art Works bill. Orphaned works are creations likely still under copyright; photographs; illustrations; written works; music; etc, for which the original creator cannot be found, and thus their copyright status cannot be determined.
This bill gained a great deal of furious criticism following a slightly panicked article by Mark Simon from Animation World Magazine . There has since been an articulate and informed rebuttal by Marybeth Peters from the American copyright office. There is a breakdown of the process to date available on the Public Knowledge blog.
It’s an issue, like our own Resale Right bill, which requires and deserves research and careful thought. Although I cannot currently put together a more comprehensive review and/or response to these bills, these links will perhaps form a starting point for independent research.
*from the NZ Ministry of Culture and Heritage website
March 29th, 2008
Street Photographers in Britain are having an increasingly hard time taking photos. “Now, a new poster campaign by the Metropolitan Police is inviting Londoners to call a hotline if they don’t like the look of a photographer. “Thousands of people take photos every day,” runs the text. “What if one of them seems odd?” The poster states that terrorists use cameras for surveillance.”
Read the story here