Wednesday, November 19, 2008

Fair Use and Unfair Use

Questions of copyright and fair use are running rampant across the arts blogosphere. I'm a bit pressed for time this morning, but here's a short list:
  1. [via Newsgrist] German Artists Defend Copyright in Google Era. (Essentially, he doesn't feel his copyrighted images should display in Google's search results)
  2. Catherine Spaeth's blog (Catherine discusses a case of a writer plagiarizing her blog writing and at least one magazine he writes for not taking his work down).
  3. The Estate of Helmut Newton objects to Paddy Johnson's use of an image. James Wagner applauds her response.
Among these issues, it probably won't surprise anyone that I support Catherine's request that the magazines publishing her plagiarist's work stop doing so and apologize to her, I feel the use of images on blogs are probably not worth hiring lawyers to fight over (but to each his / her own), and I feel the artist who doesn't want Google to display thumbnails of his images in their search results might be a bit more careful in what he wishes for.

Again, pressed for time, but my short response is: Personally, I feel you have to choose your battles in all this. Is it really worth suing a blogger over a copyright issue (yes, I know that if you don't, you may stand letting such inaction work against later, more important claims), but as Google is saying, they can't check the copyright issue for each image on the web, so I think anyone who doesn't sue bloggers can use the same defense (the Internet's too big to police) when they feel they do have to sue someone bigger...someone clearly using that image to make money in an inappropriate way.

And with that...I'm off for coffee...Consider this an open thread on the evolving dance between copyright holders, the Internet, and the Law.

Labels: ,

33 Comments:

Anonymous Anonymous said...

a question:

what if a magazine prints image of an artist's work/installation without any mention of her name? and when this emerging artist writes to the magazine on the matter, they are so macho and dismissive, they don't bother to respond -because after all, they have given a space to 'african art' and the artist in question, being a total unknown, should simply no be heard from.

i am talking about attribution here -not copyright.

is it fair to print a living artist's work in your magazine without attribution? this is no madonna that is universally recognizable as leonardo's

11/19/2008 10:12:00 AM  
Blogger kalm james said...

Here’s a solution to the plagiarism problem: Simply call them a Democrat and everyone will forgive them.

You all voted for one, right? Now you're pissed?

11/19/2008 11:17:00 AM  
Anonymous Anonymous said...

Catherine Spaeth-Plenty of academics plagiarize and get away with it, in the sense that they don't lose their academic positions when they are found out. Doris Kearns Goodwin didn't lose her job when she plagiarized and was caught. Stephen Edward Ambrose plagiarized too. It isn't just Internet writers who plagiarize and academics aren't above it all.

kalm james-What the hell are you talking about? I realize that your goal was to incite the Democrats out there but what was your point?

11/19/2008 11:26:00 AM  
Blogger joy said...

just quickly: plagiarism and copyright infringement are two very different things, not to be confused. the former is an ethical breach, more like committing fraud: there is no "fair use" clause when you are signing your name to someone else's work.

Copyright infringement otoh is about using/performing/publishing/reproducing someone else's work without their permission; fair use describes and provides the exceptions to this rule.

11/19/2008 11:55:00 AM  
Blogger kalm james said...

Politics trump morality?
Hypocrisy is fine?
The emperor has no clothes!

I wouldn't dream of inciting the Dems, or anyone else.
Make love not war.
Draft beer not students.
All we are saying is give peas a chance.

11/19/2008 11:58:00 AM  
Anonymous Cedric Casp said...

++++the artist who doesn't want +++Google to display thumbnails of ++++his images in their search +++results



Wow, people can be impossibly vain. It's like they never yet lived through something harsh enough to make them differentiate between what's important and what's just kittie's litter.

Most art magazines by the way, unless the real big commercial ones, don't really make money.
So if an artist sues a magazine it's important that they understand that it's not "they're stealing money from you". Personally, an artist who freaks out when they see photos of their work around, I call this "lack of generosity" and I try to avoid them or their art. But you only learn about this at the detour of a conversation. You think that someone is really great and them something comes up in a conversation, a stupid detail, that reveals their stupid vanity.
It's very disappointing.

I don't know about the Catherine Spaeth issue but any wise magazine would simply hire her.


One day I entered a gallery and I saw a video work that looked astoundingly like a project I did back at school. I thought "wow, that can't be a coincidence". I looked up the CV of the artist, and they were studying at my U at the time I was showing there. I was certain they got the influence from seeing my stuff. But I was actually very flattered. I just signed my name in the guest book and said "great art", sort of self-flattering myself all along. Today I would never present such a single channel work in a gallery context.


Cheers,

Cedric Casp

11/19/2008 12:09:00 PM  
Blogger George said...

Lewis Hyde

11/19/2008 12:20:00 PM  
Blogger Edward_ said...

Someone forgot to take his Lithium this morning, eh JK?

11/19/2008 12:22:00 PM  
Blogger joy said...

Lewis Hyde = better than Lithium.
:-)

11/19/2008 12:31:00 PM  
Blogger George said...

lets lick lithium
lithe loose loonies
losing lusts last
lays lame lore
long large lanky
literate lotharios
lisping languidly
liquid laughter
leisurely leading leaves
laconically left
lobbying lard

lingrasc

11/19/2008 12:36:00 PM  
Anonymous Anonymous said...

The art world rocks!

11/19/2008 12:38:00 PM  
Blogger Sean Capone said...

There is a specious idea that some proponents maintain: that since some digital products or creative outputs are designed to be 'open source', and since all our information & images are available through digital means, then it follows that everything is open source; i.e. free.

I think that in the cases of copyright infringement, it is a reaction to this phenomena from a more traditional mindset; what they are really interested in is maintaining a sense of scarcity around their work (thus promoting the work's aura, value, and sense of excitement when properly exhibited). I kind of understand this. But in the case of the German artists, it begs the question: what is their work doing online in the first place? And after reading the article I don't feel they made their case for how image thumbnails are endangering their profit margins. They are just reacting to something outside their direct control, about 10 years too late.

Equally problematic are the artists and marketing agencies that are exploiting the 'open source' or 'open call' philosophy in order to extract free labor from eager young creatives. Every week I get an email announcing a call for a 'participatory' (an increasingly loathsome and misused word) online art or design project, as though it's some kind of radical multimedia narrative-corpse, rather than a way of getting lots of free work for little labor or money. It's the flip-side of copyright abuse, and it demonstrates an interesting point (that porn has proven for years): the endless proliferation of images devalues them, yet our craving for them become more obsessive and attentive.

In all this there needs to be a better understood distinction between the 'image' and the 'artwork', if that make sense.

11/19/2008 12:43:00 PM  
Blogger George said...

The world is awash in digital detritus which will be all but forgotten in the blink of time.

One job of the artist is to make images indelible.

An indelible image needs no copyright.

(Copyleft)

11/19/2008 01:09:00 PM  
Blogger kalm james said...

Ed,
You insult me, this is free-range neurosis (I apologize. I can’t help but poke a stick into the cage to start off my day).

As someone who’s had their online artworks “barrowed” sliced and diced and reconstituted in the most inartistic ways, as I see it, this discussion is all theoretical until there’s money to be made. I don’t see people spending a fortune on lawyer’s fees for the principle of things, (money talks and an art blogger walks). How can we capitalize on the informational economy?

Copyright, fair use and issues of control aside, I’m sure you bloggers are making plenty of money for your efforts (humor), tell us how this will work?

11/19/2008 01:20:00 PM  
Anonymous Anonymous said...

Most art magazines by the way, unless the real big commercial ones, don't really make money.
So if an artist sues a magazine it's important that they understand that it's not "they're stealing money from you". Personally, an artist who freaks out when they see photos of their work around, I call this "lack of generosity" and I try to avoid them or their art. But you only learn about this at the detour of a conversation. You think that someone is really great and them something comes up in a conversation, a stupid detail, that reveals their stupid vanity. It's very disappointing.



is the above comment a response to the first question (which was a simple question we ask about "what ifs" of not knowing an image exists and finding it in a magazine without attribution)

a simple question desiring of real advice -not judgmental harsh misreading.


cheers

11/19/2008 01:22:00 PM  
Blogger spottheblogger said...

The German artist/photographer whose images showed up on Google clearly doesn't understand the internet or copyright.

Google spiders the internet. When it encounters a robots.txt file that says "don't spider this site, don't index this content" it complies with the instructions.

If you put your images on the internet and do NOT use robots.txt to tell Google to not index your files, then they will be indexed and can be found by searching with Google. That's how internet search WORKS.

If you want a private phone number, you have to pay the phone company to keep your number out of the directory. But all you need to do to keep your webpages private from search engines is properly use robots.txt.

This is not a copyright issue, it's a technology issue. Use the technology that exists to control if your work appears in Google's search results or not.

11/19/2008 01:47:00 PM  
Blogger Edward_ said...

funny you should highlight that, spottheblogger...having recently been introduced to that concept, I was going to recommend robots.txt files for artist's websites, but then it occurred to me that the German artist's images are probably all over the web and that wouldn't necessarily work anyway. And don't they stop search engines from returning the text as well (or can you use them to single out image?)

E_

11/19/2008 01:57:00 PM  
OpenID deborahfisher said...

I was going to bring up Lewis Hyde, but George beat me to it. Lewis Hyde Rocks!!!

11/19/2008 03:05:00 PM  
Blogger Catherine Spaeth said...

Thank you, Ed, for posting this and for your support. And Cedric, for your compliments, which I sincerely appreciate.

I do write for magazines, but stopped making queries months ago because the descriptive monographic review is very limiting if that's all there is, because I still have an article approved and in line at a major publication nearly half a year later, and because the pay is so ridiculous that it is an insult. With all of those things stacked up in a row, blogging was for me the only way to go.

Regarding technology, there is so much here, but I find Sean Capone's concern about "outsourcing" symptomatic of so much that has gone wrong.

All Karen Justl had to do was type two words in Google to find where they came from. As much as the web has made plagiarism an issue, it also makes the discovery easy. The problem is that by then it is too late.

Yes, there's plagiarism in the academy, and sometimes a student only gets a "B". But it is in the academy that the conversation exists, that an ethical practice has been grounded in discussion, parameters are set. Academics aren't above it all, which is why they made up some rules.

11/19/2008 06:48:00 PM  
Anonymous Anonymous said...

"the pay is so ridiculous"

Yup.

"parameters are set"

The question is this: is an art critic who blogs, whose writings exist solely online, and who is not edited or fact checked by anyone, a journalist or a crank? Journalists certainly have their own set of parameters, just like professors. Remember what happened to Glass and Blair? So if online art critics aren't journalists or academics what are they?

11/20/2008 08:28:00 AM  
Anonymous J@simpleposie said...

Hey Catherine, sorry to hear what you've been going through.

Anonymous, parameters accumulate and develop over time. Even the very fact of this thread demonstrates that. But I don't find the journalist OR crank dichotomy holds much water. Among other things, you left out the possibility that "an art critic who blogs, whose writings exist solely online, and who is not edited or fact checked by anyone" could be Artlurker and the team!

11/20/2008 11:37:00 AM  
Anonymous Anonymous said...

"But I don't find the journalist OR crank dichotomy holds much water. Among other things, you left out the possibility that "an art critic who blogs, whose writings exist solely online, and who is not edited or fact checked by anyone" could be Artlurker and the team!"

Missing the point. Don't understand what you are saying. Artlurker would fall into the crank category in my mind. So how doesn't the dichotomy (an overused word for sure) not apply? If bloggers aren't journalists or don't have to abide by the ethical code journalists are SUPPOSED to follow, and they are not publishing scholarly articles, then what are they doing exactly? If there is a code of ethics they should abide by does it include proper citation or is that too old school?

11/20/2008 03:11:00 PM  
Anonymous Anonymous said...

I think anon 3:11 makes an excellent point (or asks a good question). Anyone who can use the internet can have a blog. Not anyone can get something accepted for publication. That's the upside and the downside to equal access for all to the internet. No gatekeepers means acceptance to those who couldn't get into the gate of the dead-tree media, but it also means that there are no agreed upon standards or code of ethics. Everyone sets their own tone for their own blog.

Oriane

11/20/2008 03:44:00 PM  
OpenID deborahfisher said...

I tend to think of myself as more of a crank...

11/20/2008 03:50:00 PM  
Blogger Catherine Spaeth said...

Plagiarism is wrong, it's not a matter of it being okay for everyone to "set the tone for their own blog" if that includes plagiarism. And to place a blogger in a world of isolated monads, each with their own code of ethics, is simply not true to social life.

I've written for the NYT, AinA Sculpture, etc., as well as academically, etc. To think of the category"blogger" itself as adequate to "crank" or "hack" is part of the problem. You can cling to some sort of street-cred all you want, but Deborah I do not think of you as a crank writer. As you know.

I have always been writing about art, I can't not do that, and conventions in traditional media are very binding - with a blog you can really play with the form of it, and I've had a lot of fun with that. The writer who plagiarized says that he doesn't even enjoy writing, he's doing it for an untapped market. That's a very different motivation to write. In that sense absolutely, people do set the tone of their own blog.

Plagiarism is a real problem, to let it go without addressing it as an issue that has effects beyond your own self is, to my mind, to not really care much about what you are doing.

11/20/2008 06:32:00 PM  
Anonymous J@simpleposie said...

Hey Anonymous,

My point was,(not illustrated well enough) that with a team of eleven or so contributors, the magazine in question is too organized, in my mind, to fit the category of crank. I find it hard to believe they're not looking at one another's writing with that many people contributing, many of whom list academic credentials in their bios. At least one contributor is even employed at a museum! That's worrisome. Too organized also are they, not to have some awareness of participating in journalism. What are they? Well, they're unconcerned for starters. Sort of like "culturopaths" (to make up a new word for the occasion) or cultural amnesiacs or something like that. Probably up until now, no one in their ranks has even been challenged

11/20/2008 07:19:00 PM  
Anonymous Anonymous said...

simpleposie,

Did I miss something? What is the publication with 11 contributors? Was that mentioned here?

Catherine,

I agree that plagiarism is wrong. I didn't mean to make light of it. No one should take credit for another writer's work.

What I meant by "every blog sets it own tone" is simply that. Everyone can self-define because there is no set definition. Deborah can call herself a crank (ok, she may be exaggerating for effect, or to make the point that she doesn't take herself so seriously) but it's her prerogative to call herself and her blog anything she wants. And you don't have to call yourself a crank. You are free to take your own blog more seriously, but the mere fact that it is a blog doesn't mean that anyone else is obliged to take it so seriously.

Oriane

11/20/2008 08:07:00 PM  
Anonymous J@simpleposie said...

Hi Oriane,

My reference was to the publication cited on Catherine's blog in her original post .

11/20/2008 08:31:00 PM  
Anonymous amory blaine said...

I like this Sean Capone character.

It's indeed a question about control, and the next question should be, "To what end?"

Call me naive, but I've always been under the understanding the as artists, the primary goal is to get our works in front of people's eyeballs. That, after the tremendous labor of making the stuff, is the hardest struggle. Is it not? Now, given this technology, there are minions to do that bidding for us. So why such complaining? So your name's not attached. If you keep making work, and make it well, a time will come soon when no name will be necessary. Stop your bitching. People do hate complaintants so very much. Especially complaining about ficticious money. So boring. So pedestrian. Get back to work.

11/20/2008 11:06:00 PM  
Blogger Catherine Spaeth said...

Dougals McClennan, over at ARTicles, makes a nice comparision between the potential for ethical community on the web, calling it slow journalism and comparing it to the slow food movement:

Yes, I did compare the "Slow" movement to the internet, but in a very specific way. Joshua Viertel, president of Slow Food USA, was making the point that a big part of the slow food movement was about accountability and dispersal of power. In a Fast Food model, production and distribution is controlled by a few large players. This makes the food chain anonymous, and it leads to lettuce from Chile, peas from China and potatoes from Turkey. It also leads to highly processed, anonymous food that may or may not be safe, and lack of accountability for the conditions under which food is grown and processed. Slow Food values the local producers and elevates the accountability of suppliers, dispersing the power of the large producers among many.

11/21/2008 10:51:00 AM  
Anonymous Anonymous said...

I've heard all sorts of reasons and justifications for why it's fine 'n dandy to copy my articles and images. Most people do it out of simple ignorance of the basics of copyright, and it never occurs that they're potentially undermining the way I earn a living. My all-time favorite reason was that the year given after the copyright symbol was last year so copyright no longer applied.

11/21/2008 12:21:00 PM  
Blogger Balhatain said...

"what if a magazine prints image of an artist's work/installation without any mention of her name? and when this emerging artist writes to the magazine on the matter, they are so macho and dismissive, they don't bother to respond -because after all, they have given a space to 'african art' and the artist in question, being a total unknown, should simply no be heard from.

i am talking about attribution here -not copyright.

is it fair to print a living artist's work in your magazine without attribution? this is no madonna that is universally recognizable as leonardo's"

Actually it would fall under copyright if they printed the image without your permission. Kind of depends on the context as well.

If memory serves me correct you have a few months to take action in this scenario from the time you discovered it. Also, you might want to call the magazine instead of contacting them by email. In most cases they will work out a solution with you.

11/24/2008 03:14:00 AM  
Blogger abass said...

Hey Catherine, sorry to hear what you've been going through.

Anonymous, parameters accumulate and develop over time. Even the very fact of this thread demonstrates that. But I don't find the journalist OR crank dichotomy holds much water. Among other things, you left out the possibility that "an art critic who blogs, whose writings exist solely online, and who is not edited or fact checked by anyone" could be Artlurker and the team!

www.onlineuniversalwork.com

1/28/2010 09:10:00 AM  

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