An Open Letter
on Intellectual Property
by A. D. Coleman
This letter was
written to a colleague in the field, a highly reputed
senior figure in the field of art criticism who in
the year 2000 circulated to her colleagues in AICA-USA
(the U.S. division of the International Association
of Critics of Art) an email complaint about the expense
of obtaining color slides and/or black & white
and color photographic prints with which to illustrate
her books and articles. I found her lament so irresponsible
and wrong-headed on so many levels that I wrote and
sent this response to her. Needless to say, she took
umbrage.
Dear G- L-:
Declaring the
act of charging for reproduction rights to constitute
"economic censorship" defines what you term
your "earnest query" as a polemic, in my
opinion; what it manifests is attitude, not open-minded
inquiry. My insistence that you pay me a rental fee
if you want to play your song on my piano does not
constitute censorship -- even if I happen to own the
only piano in town. Your subsequent reference to such
requirements as "a mafia shakedown" makes
it clear that you're not looking for information or
debate but allies in support of a position on which
you've long since made up your mind and brook no argument.
Be that as it
may, the CAA [College Art Association] has a Committee
on Intellectual Property that considers the question
of fair use (among other matters), issues advisories
on that topic, and has devoted sessions of several
national conferences to this question. It's also touched
on regularly in the CAA newsletter and elsewhere.
Hard to believe you're unaware of the extensive, high-profile,
long-term discourse on this subject within your own
profession.
As for AICA-USA:
Whether or not you missed the debate between myself
and Max Kozloff and Barbara Hoffmann several years
back, it was sparked by a long self-serving letter
on that very subject, published in the AICA-USA newsletter,
in which Kozloff excoriated both his publisher (University
of New Mexico Press) and Richard Avedon for "censoring"
him. And it was announced in the AICA-USA newsletter
and various mailings, and then summarized in a subsequent
AICA-USA newsletter. All of that is known to AICA-USA's
president, Judith Stein, who should have notified
you of it, and also included it in her otherwise rote
forwarding of your inquiry.
Apparently all
of this has escaped your attention; how else could
you, in your "earnest query," have asked,
"Is anyone else concerned that 'Fair Use' has
gone out of style for art critics, curators, and art
historians?" as if that concern were yours alone,
and the rest of us had stepped out for a beer? Fact
is, it's been the subject of intense public discussion
for years. I lack your credentials in the field, of
course, but would the fundamentals of scholarship
not involve researching first to see if this topic
had been broached already within the profession generally
and then specifically in the context of AICA-USA?
Beyond that, I'd
attribute the tone of my letter to the fact that Kozloff's
letter was published in a way that made it appear
the entire AICA-USA membership endorsed his claim
to absolute entitlement to publish Avedon's images
without permission or compensation, using nine-year
old press prints of the images he borrowed from the
Art in America files for the purpose -- and
that it was only my kicking and screaming over this
nonsense that brought on the debate over this highly
questionable practice, and resulted in a statement
that clarified AICA's non-support of this bizarre
practice. I took a good bit of flak for that -- from
Kozloff, from Hoffmann, and from others. No good deed
ever goes unpunished, of course; still, I'm touchy
on the subject. If any of that spilled over inappropriately
on to you, I apologize. And, in a more amicably collegial
mode, I offer the following.
As one who publishes
books and articles himself, often with illustrations,
I'm well aware of how costly and time-consuming it
is to gather and pay for the permissions necessary
for illustrations. However, I must also say that --
in my books, and in those of many of my colleagues
concerning all media, not just photography -- illustrations
are often icing on the cake. That is to say, they're
frequently included not because the text specifically
refers to something about that particular image that
requires its ready availability if the point is to
be effectively made, but instead to give a general
taste of the artist's work -- and, beyond that, because,
as more than one publisher has told me, illustrated
books on art (and photography) sell better than books
that include text only. So illustrations often serve
purposes other than the strictly scholarly, purposes
related primarily to the author's and publisher's
profit.
In all but one
instance -- my 1977 study of the grotesque in photography,
for which I had a picture budget of $10K -- my publishers
and I have gone with the illustrations that were legally
available free, cheap, or in exchange for copies of
the book. In only one case have illustrations in my
books been published without written permission and
some compensation (small cash amounts and copies of
the book); I'm still making arrangements, ex post
facto, to obtain the permissions my publisher promised
to get but didn't (without my knowledge of that fact),
and paying the photographers off with copies of the
book -- which I purchase myself for that purpose.
I consider this instance a deep embarrassment, professionally,
and have taken steps to ensure that it never happens
again.
Living artists
have a right to compensation for the use of their
work; so do their estates, according to the copyright
law; and so do those institutions that house and maintain
their work. Insisting on such compensation in return
for the licensing of reproduction rights hardly constitutes
"a mafia shakedown" -- an odious and reprehensible
analogy, in my opinion, unworthy of a scholar of your
caliber.
There are of course
people who insist on vetting any accompanying text
before granting permission for reproductions. The
Arbus estate (her daughter Doon Arbus is in charge
of it) is notorious for that. I do consider that to
be censorious, ideationally if not "ideologically,"
and will have no part of it. I also think it's foolish.
But it's perfectly legal and within her rights as
trustee of the estate, so I make no complaint about
it. The law's the law, and I respect it; her rights
trump mine. The worst-case scenario, which is also
the actuality, is that if I refer to an Arbus image
I have to send my reader looking for it in some authorized
publication. I don't find that a terrible hardship
for myself or for the reader -- nor is it too high
a price to pay to maintain both my own editorial freedom
and the principle of maker's rights in relation to
intellectual property.
I don't know what
anyone charges to reproduce, let's say, a passage
from a copyrighted score or a film still from a copyrighted
movie. Nor do I know what they're charging for one-time
rights to print a film still from a public-domain
movie or a page from the preserved manuscript of a
musical score that's in the public domain. However,
I'd assume that, whether that material is in private
or institutional hands, some fee is assessed. At the
very least, the charge goes to offset the cost of
production and mailing of the physical copy provided
to the scholar (e.g., a photographic print). It also
goes toward the cost of maintaining the archive in
which the work is housed, preserving the work itself,
and covering the salary costs of those who run the
archive. I can't see any reasonable objection to any
of that.
Moreover, even
for works that are out of copyright the laws concerning
property still prevail, specifically the fact that
possession is nine-tenths of the law. Let's make a
hypothetical case. A museum owns a painting -- a Turner,
let's say, long out of copyright -- that you want
to reproduce to accompany an extensive critical analysis
of that very work. Any print or slide of it, in whole
or in part, refers to a physical object that this
museum spends time, effort, and money conserving and
making available to specialists like yourself and
to the general public. Quite possibly that print or
slide has been produced by the museum, at its expense,
or, if it doesn't already exist, will have to be produced
on special order for you. In any case, it's a representation
of something they own. What, if anything, entitles
you to reproduce it -- in either a high-quality or
a low-quality reproduction -- in a product that you
and your publishers generate for the market, without
either permission from or compensation to them?
The proposition
that your product -- your book -- will be notably
improved by the inclusion of this illustration doesn't
persuade me; they're under no obligation to donate
improvements to your product. The possibility that
your product will enhance the value of this work from
their collection, by contributing usefully to the
connoisseurship and/or scholarship thereof, certainly
exists, but that's definitely a crap-shoot. Setting
aside my respect for your work, some of which I've
read, there's at least a fifty-fifty chance that any
monograph on any artist will turn out to be unintelligent
and obfuscatory and a muddying of the waters. Yet
even if every work of criticism and/or scholarship
were guaranteed to add substantially to our knowledge
of the work it discussed, those who hold the work
are under no obligation to assist in the production
of that analysis by subsidizing it through cost-free
illustration. That too is the law, and I respect it
and abide by it.
Did institutions
and individuals once turn a comparatively blinder
eye to scholarly use of reproductions, and even provide
the necessary press prints and/or slides at their
own expense? Yes, and that's something to be eternally
grateful for -- a grace period when we got free handouts.
But that doesn't make it an entitlement (though it
does make it an unfortunate habit on our end, and
a now unreasonable expectation on our part and that
of our publishers). Are they now charging what the
market will bear, and keeping a close watch on violation
of either their copyright or their proprietary rights?
Certainly -- and more power to them; I'm doing the
same with my own intellectual property. Are they looking
for inventive ways to generate revenue from their
inventory? Yes; so am I. There's a more highly refined
awareness of intellectual property rights and their
potential afloat now than we've ever had before. I'm
all in favor of it, and see those fees for illustrations
as a reasonable trade-off for my ability to license
subsidiary rights to my own works, prevent their unauthorized
reprinting in other people's books, and otherwise
make the most of my own efforts.
So, while I'm
sympathetic to and personally experienced with the
problems caused by the permissions requirements --
both the logistical problems of tracking down and
obtaining the permissions and the financial problem
of paying for them -- I don't see these as constituting
either "a mafia shakedown" or "economic
censorship," and remain disenchanted with what
strikes me as mindless and irresponsible usage of
those terms on your part. Instead, I'd suggest that
this situation should serve as motivation for you
to demand of your publishers that they revise their
contracts, so that they themselves assume both the
workload and the economic costs involved in obtaining
illustrations. Require of them that they provide you
with a separate and adequate budget for picture rights
and a designated staffer with whom to pursue them,
or that they expand your advance to cover the realistic
current costs of obtaining such rights -- or else
reject the contract. This is a problem that should
be placed squarely on the doorsteps of the publishers,
where it belongs, and not taken out on artists, their
estates, or the archives in which works of art reside.
If art critics
and scholars of your stature stood up for themselves
in that fashion, and made their doing so a public
act, publishers might well find it necessary to change
or drop these ridiculous demands that we ourselves
subsidize the illustrating of our own books. As a
founding member of the National Writers' Union, that's
what I'd advise you to do. Art critics and academic
writers are, notoriously, the scab labor of the writing
profession -- willing to sign any contract, no matter
how unfavorable its terms, in their desperation to
get published. (Last year, in recognition of that
fact, the NWU established an organizing initiative
for academic writers.) As it happens, I teach seminars
on copyright, contract negotiation, and subsidiary-rights
licensing for the union. If you're interested, I'd
be glad to have you put on the email list for notification
of the next one. I'd be interested in having you raise
that question there, and would essay a more comprehensive
answer than this sketchy one.
Yours,
/s/ Allan Coleman
This letter is
previously unpublished.
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