Serendipity35

I stole the title of this post from a Sunday Star-Ledger article I read this past weekend. (You can't copyright a title, so go ahead and write your own The Great Gatsby.) The article appeared at first just to be about the artist J. Seward Johnson. I have been to his Grounds For Sculpture park in New Jersey several times and really enjoy it. Now, some of his sculptures of celebrities may be grounds for a lawsuit, and the legal issues surrounding the use of images is really the topic of the article.

As an introduction, from the Star-Ledger:

As a sculptor, J. Seward Johnson Jr., is perhaps best known for his playful, photo-realist sculptures of everyday scenes: a father teaching his child how to ride a bike, or a stockbroker checking through his briefcase before a meeting, or even painters rolling latex on a blank wall.

At his 35-acre park, Grounds for Sculpture in Hamilton Township, he's added three-dimensional bronzes that depict whole Impressionist paintings like "Le Déjeuner sur l'herbe" by Manet or "Luncheon of the Boating Party" by Renoir, both sculpted in colored bronze, so visitors can walk through a famous painting in a natural setting.

The focal point of the article is a the image called Forever Marilyn where MM is having her dress lifted over a breezy subway grate that he used from the film The Seven Year Itch as the basis for a sculpture. The Ledger article online contains none of the photos from the print version I read. Copyright? Fear? I found the image I used here on a hotel site. It seems there's one of the sculptres in the St. Gregory Hotel And Suites in Washington, D.C.

J. Seward Johnson, (who is an heir to the NJ-based Johnson & Johnson company) started in sculpture in 1968 after a successful career as a painter and you can see the painter in many of the pieces at the GFC park. Visitors love to walk "into a painting." I've done it myself. That's me "chatting" with the sculpture-Johnson in the photo at right. I'm "pulling" that photo from my Flickr account where some of my photos are posted along with a Creative Commons license. More on all that below...

Are these sculptures a form of copyright infringement? This is always such a tough area to deal with even in educational settings. I'm on a panel in April about plagiarism and although plagiarism and copyright are different, they ae often addressed in educational settings together with intellectual property and patents.

This current issue concerning celebrities could easily show up for your students or you if you begin doing video mashups using existing films or stills, and especially if you are uploading them to websites. If the website is your school's server, that's one case, if they are on YouTube getting thousands of views (and possibly downloads), that's another kind of case.

In 1985, California passed a Celebrities Rights Act that has a sub-section with the wonderful name of the "Astaire Celebrity Image Protection Act." I'm guessing most readers of this blog are of an age that they can recall the TV commercial that had Fred Astaire with a vacuum cleaner as his dance partner instead of Ginger Rogers. And they have since passed amendments. One in 2007 the right of publicity for up to 70 years (from 50) after the celebrity's death. This is typical in copyright legislation where the expiration date keeps being extended which helps merchandisers but not educators or artists. The California laws (signed by celebrity governor Arnold Schwarzenegger) only apply in that state, so an artist could only get sued over work in an in-state public show.

But other states have their own laws. The New York State Legislature is considering its own celebrity protection act for 70 years after death.

Are there no exceptions? Yes, there are exceptions for any "play, book, magazine, newspaper, motion picture, musical composition ... single and original work of art, work of political or newsworthy value." We do still have some First Amendment-protected uses for a celebrity's "name, portrait, voice, signature or picture."

It's the interpretation of these laws (or lack thereof) that always cause the concern and questions for educators and artists. In Johnson's case, the phrase "single and original work of art" might be the problem since he did not cast one but five versions of Forever Marilyn and planned on more. That's something he typically does with his work.

What about all those iconic Marilyns by Andy Warhol that seemed to be mass-produced? And today we have many more students and artists manipulating images of celebrities, sampling, mashing, creating media and posting it online.

"I worry any time a legislature puts any sort of limit on what an artist can say or do," says attorney Richard Wiebe, from the Electronic Frontier Foundation. He often deals with intellectual property issues and is advising Congress on the current controversy over the phone companies' cooperation with the Bush administration on secret wiretaps of American citizens in the name of anti-terrorism. This is hardball.

Let me bring the discussion down to the blog level. In researching information for this post, I came across many of Johnson's images online. For example, on a Wordpress blog is his God Bless America which is based on the very familiar Grant Wood American Gothic painting. I know I've seen versions of that painting used before for ads & satires in all kinds of medium.

Seward's sculpture is installed in NY’s public Eisenhower Park and you can find other examples of his work at many museums including the Hofstra University Museum. Are they in violation of a copyright law by having a sculpture based on a celebrity or pre-existing work of art?

The Wordpress blogger has the image hosted on Wordpress which means it was downloaded and then uploaded again to the server that serves his blog. That's what I did right here. I also might have "pulled" the image from his blog or some other site. I might have tried doing it from Johnson's own web site (though it's a Flash site and it's harder to grab images from there - perhaps deliberately on the part of an artist). Say what you will about using Wikipedia, but there's a whole quick education on Fair Use to be found in looking at what's behind their use of images. Look at this page about the Grant Wood painting as an example.

I also have a blog using Google's Blogger, and they offer a good, short tutorial on using images linked from their image-upload tool.

"Blogger's image upload feature allows users to upload and display images in their posts. This is great when you want to add a photograph you shot or an image you created. However, there are a few details to note when it comes to images that are legally protected or hosted at someone else's expense.

If you choose to "Add an Image from the Web" using the image upload feature in Blogger, you shouldn't use an image location that is hosted at someone else's expense without their permission. Sometimes this is referred to as "stealing bandwidth" because every time your blog loads, the image is loaded from their server, and this person likely incurs an expense.

Before you put an image in your blog, realize that some images are protected as intellectual property through copyright. This means that the creator has sole legal rights to their works and may not want you copying and displaying them. If you are unsure whether or not an image is copyrighted, it's best not to risk it."

I have my students blog for me using Blogger, so I reference this information on day one. The idea that linking to an image on the web is "safer" than downloading a web image and hosting it yourself is probably a false one. Still, as far as I know, it's not well tested in the courts (correct me if I'm wrong) and it is done many thousands of times each day on blogs and other sites. That doesn't make it right. That makes it an issue.

I also follow Blogger's suggestion and have my students explore places which make it easier for you to find images that you are allowed to use. I start them off with Open Photo, Flickr's Creative Commons information and Creative Commons Search itself.

More Celebrity & Copyright

The Copyright Term Extension Act (CTEA) of 1998 is also known as the Sonny Bono Copyright Term Extension Act, Sonny Bono Act, or pejoratively as the Mickey Mouse Protection Act.

This act sponsored by then Congressman Sonny Bono, extended copyright terms in the United States by 20 years.

Under the Copyright Act of 1976, copyright would last for the life of the author plus 50 years, or 75 years for a work of corporate authorship. CTEA extended these terms to life of the author plus 70 years and for works of corporate authorship to 120 years after creation or 95 years after publication, whichever endpoint is earlier.

The Act also affected copyright terms for copyrighted works published prior to January 1, 1978, also increasing their term of protection by 20 years, to a total of 95 years from publication.

This law effectively 'froze' the advancement date of the public domain in the United States for works covered by the older fixed term copyright rules. Under this Act, additional works made in 1923 or afterwards that were still copyrighted in 1998 will not enter the public domain until 2019 or afterwards (depending on the date of the product) unless the owner of the copyright releases them into the public domain prior to that or if the copyright gets extended again.