Photo Permission & Copyright Issues - Is this hampering a dialog?
Giving Thanks Artfully

Pandora's Box or Toolbox - COPYRIGHT of Photographic Images

On November 18th I wrote to Garth Clark via email to thank him for his comments about the previous post on ASK Harriete. We were discussing the issues surrounding the importance of photographic images in creating a dialog and critical discourse within the arts and crafts community. 

Many issues surround the use of photographic images.  So in an effort to bring this discussion into a more public forum, Garth Clark agreed to a post of our email conversation.

Garth Clark is a noted author and lecturer who has lectured across the U.S. I have listed a few of his many books on the right column of this blog as affiliate links for your convenience.

HARRIETE email text is in black.
GARTH Clark's email text is in steel blue.

Critics Choice is a series of three pencil sharpeners as a commentary on art criticism.
Critic’s Choice © 1986
brass, copper, steel, painted, plated,
Artist:Harriete Estel Berman
Photo Credit: Philip Cohen

HARRIETE:
Thanks for your comment [on the previous post on ASK Harriete]. I am glad to hear your point of view directly rather than filtered by my notes and memory.
 
Trying to be organized here …. It seems that there are three issues:
Issue#1. Hampering versus encouraging ”legitimate scholarly or critical usage.” Publishing books and articles including images for “legitimate scholarly or critical usage” should definitely be encouraged.  This is the reason I wrote the previous post about this topic. The arts and crafts will grow and develop by expanding such discourse.  I would like to encourage authors, publishers, artists and makers to all cooperate in this endeavor.  We all benefit.

GARTH:
Encouragement is not enough. See comments below. It has to be a legal option for the writer.

CRITIC's Choice  Metalgramatic pencil sharpener is made from lead by Harriete Estel Berman
Critic’s Choice © 1986
brass, copper, steel, painted, plated,
Artist:Harriete Estel Berman
Photo Credit: Philip Cohen

HARRIETE:
Issue #2.  Copyright protection and artists’ rights to control images of their work.
I could never endorse that artists abdicate their rights of ownership of the work they created.  If they don’t see a benefit to themselves or their community for participating in someone's “usage” it is a loss for them.  That is their right, whether anyone else agrees with them or not.  Yet, I hope that it is clear that in the vast majority of situations, I firmly believe that the artists benefit by granting permission (even without direct payment) and being included in a publication.

GARTH:
I agree but with an exemption. My free speech as a critic should enable me to voice my opinion and illustrate the object of my criticism with or without the artist's permission so long as it does not constitute commercial usage. It cannot be "by permission only" because my experience in real life is that artists are into free speech for themselves but not when someone wants to question their work. So to think that they will just cooperate is naïve.

 

Critics Choice pencil sharpener titled Didactic is constructed by Harriete Estel Berman  as a commentary about art criticism.
Critic’s Choice © 1986
brass, copper, steel, painted, plated,
Artist:Harriete Estel Berman
Photo Credit: Philip Cohen

HARRIETE:
Issue #3.  Use of images for commercial enterprise.
While the premise of books and articles may be “legitimate scholarly or critical usage,” my understanding is that someone is selling those publications.  Whether or not anyone makes a profit, such use is a commercial enterprise.  For example, book publishers sell educational textbooks but are still required to obtain permission to publish copyright images. Even if profit is not the primary motivation, the author or publisher is still benefiting from the use of artists' images in the publication.

GARTH:
This defeats the whole purpose. The craft world is so concerned that someone might be slipped a buck or two and they will not. How can criticism be disseminated without someone being paid, a publisher, a critic, a photographer. The point is whether one was making a critical statement about the art or trying to exploit it for profit.

Do you know what a reviewer gets paid by a daily newspaper for a review, $130. In many cases what the writer gets for writing a piece is less than what the artist receives for copyright fees. Current fair usage already mandates limited use of the imagery. If I were to write an entire book on an artist, pro or con, that would be a violation. But if in a text with 200 images I needed to reproduce two photographs that were essential to the critical argument, that is fair usage.

And that does not give wholesale permission for anyone else to use the image thereafter. No primary right has been lost. And it's not that artists use this to control copyright in a fair and open manner but often to control content (i.e. smother dissent with threats of lawsuits). I find that antidemocratic and an affront to the supposed open exchange of the aesthetic experience for which the art world purports to stand.

What this has resulted in is that independent book publishing is on its way out.  Over 90% of the books you see on artists today are artist sanctioned volumes (often with fees waived because its to their benefit) that are paid for upfront and in full by their gallery, a sponsor, collector or their estate. Publishers are too scared to cross this line, so all we get now is coffee table PR. Don’t you think something has been lost?

I would warn younger artists in trying this ploy. Publishers simply exchange images for which a fee is requested with those of artists who make no charge. So unless you are crucial to the document, you could find yourself edited out by the accounting department.

But before you get your crafters smock in a twist, bear in mind this applies ONLY to LEGITIMATE critical writings. And there are already some guidelines. Books such as Lark are not critical studies and would not be exempt. I am arguing for a very narrow exemption on the correct side of free speech.

Critics  Choice says, "RESONANT with Social Implications" by Harriete Estel Berman
Critic’s Choice © 1986
"Resonant with obligue social
implications"
brass, copper, steel, painted, plated,
Artist: Harriete Estel Berman
Photo Credit: Philip Cohen

HARRIETE:
So an exchange of benefits seems like an opportunity.  Let the two parties negotiate.  Hopefully, both sides see the mutual benefits of working together (with or without cash compensation), but if they don't agree, both must walk away empty handed.  I think it would be heavy handed to "amend the law" to assure that one side always wins.

GARTH:
And as so often happens in the arts with “enlightened” legislation to protect the artists such as 5% resale fee to artists, 99% of the benefit goes to the superstars. If you are going to pay for photographs, the bulk of that budget is kept for the Koon's and Hirsch’s of the world because they have the greater bargaining power. (Although Koons was very gracious in allowing me to include his work in my recent Metalsmith piece without cost.)

And it gets worse because in some cases one has to pay the museum that owns the piece, the photographer who shot it, and the artist. Three charges! That bill can come to over $1500 per image! Bear in mind that almost nobody makes big money off art books. So while it may fit into your commercial use bracket, neither the publisher nor the author earns enough for a week in Monaco. And what books do in developing audience for artists is immense. Copyright fees are now strangling the independent book publisher. Major artists will not feel any pain because they self-publish. Lesser artists (financially speaking) will become invisible.

Thanks for giving this subject some air.

HARRIETE to the readers: This discussion is just beginning.

  • Do you have any comments or questions that you would like to add?
  • Does this issue impact only the rarefied artist or the entire community?
  • If you are paid for using images of your work, is your photographer going to expect additional compensation?  
  • I personally wonder who decides what author or document fits into the category of "LEGITIMATE critical writings." 
  • Are we opening a Pandora's box with this discussion or can we arrive at a broad consensus?

Pandora's Tool Box titled Make Me Over, Over, Over by Harriete Estel Berman Pandora's Box Make Me Over, Over, Over  © 1984
brass, copper, steel, painted, plated,
Artist: Harriete Estel Berman

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