IP and copyright legislation

Copyright legislation may sometimes seem unappealing if not downright boring. This certainly does not apply to the ongoing court case involving the American artist Richard Prince (Cariou v. Prince), reported in numerous newspapers (and law journals) in both sides of the Atlantic. This copyright trial offers a fascinating close-up view of current ‘fair use’ (the US doctrine of copyright limitations and exceptions related to, but different from, ‘fair dealing’) interpretation in the context of contemporary art practice, particularly the use of appropriation. In March 2011 a federal district court in New York ruled that Prince broke the law by taking photographs from the book ‘Yes, Rasta’ (2000) by Patrick Cariou and using them without permission to create collages and a series of paintings (‘Canal Zone’, 2008) based on them. He is currently appealing this decision.

 

Cariou v. Prince, 784 F. Supp. 2d 337 (2011)

http://scholar.google.co.uk/scholar_case?case=18222445238017802130

The Art Newspaper

http://www.theartnewspaper.com/articles/Patrick-Cariou-wins-copyright-case-against-Richard-Prince-and-Gagosian/23387

The New York Times

http://www.nytimes.com/2012/01/01/arts/design/richard-prince-lawsuit-focuses-on-limits-of-appropriation.html

 

The ruling and the case in general have got significant implications for the interpretation of fair use and copyright legislation, but also raise fundamental questions regarding the nature of art, the status of original art work, the notion of authorship, and the relations between current art practices, law, and the market. In fact, Greg Allen, of greg.org, has published a 376 page book ‘Canal Zone; Richard Prince; YES RASTA: selected Court Documents from Cariou v. Prince et al.’ that compiles court filings and transcripts from the trial, including a 7 hour long deposition by the artist, the longest discussion of his work to date. It is available online and from Printed Matter, the artists’ books specialists, as befits a tome that appropriates the legal papers of a case on appropriation. Duchamp would have been proud.

 

Greg.org

http://greg.org/archive/2011/03/26/canal_zone_richard_prince_yes_rasta_the_book.html

Allen, G., ed. (2011) ‘Canal Zone; Richard Prince; YES RASTA: selected Court Documents from Cariou v. Prince et al.’ Washington DC: greg.org.

http://www.printedmatter.org/catalogue/moreinfo.cfm?title_id=88868

 

Prince is not new to legal controversy. Only a couple of years ago, in 2009, his work was also in the newspapers when another re-used image, ‘Spiritual America’ (the photo of a photo by Garry Gross of naked actor Brooke Shields aged 10) was removed from the exhibition Pop Life at Tate Modern at the request of the police (and the catalogue from sale). Although in that case obscenity laws, not copyright, were at the centre of the argument, the ownership (and copyright) of the image had been previously contested in a court case involving the photographer, the mother (who authorised the image at the time when it was made) and the actor, then a young adult.

 

The Guardian

http://www.guardian.co.uk/artanddesign/2009/sep/30/brooke-shields-naked-tate-modern

 

Resources for libraries

The US-based Association of Research Libraries has just made available a new ‘Code of Best Practices in Fair Use for Academic and Research Libraries’, accompanied by an interesting podcast. In the UK, JISC Legal Information provides excellent advice in this area for university libraries, including a simplified step-by-step guide to copyright law and IP law, guidelines to specific issues (using Facebook in an academic context, for instance), FAQ and news. CILIP and LACA: the Libraries and Archives Copyright Alliance also offer information for UK library professionals, including a bibliography, copyright posters and forms, an online enquiry service and advice on specific issues. The American Library Association (ALA) and the Library Copyright Alliance (LCA) in the USA, and IFLA at the international level, provide additional valuable resources and information. All these proffesional organisations play also an important advocacy role, with IFLA currently working to gain support for a binding international treaty on copyright limitations and exceptions to enable libraries to preserve their collections and support education and research in the 21st C.

 

ARL Code of Best Practices in Fair Use for Academic and Research Libraries

http://www.arl.org/pp/ppcopyright/codefairuse/code/index.shtml

JISC Legal Information: Copyright and IPR

http://www.jisclegal.ac.uk/LegalAreas/CopyrightIPR.aspx

CILIP/LACA

http://www.cilip.org.uk/get-involved/advocacy/copyright/pages/default.aspx

ALA

http://www.ala.org/advocacy/copyright

LCA

http://www.librarycopyrightalliance.org

IFLA

http://www.ifla.org/en/copyright-tlib

 

In addition to ‘fair dealing’ copyright exceptions (e.g. for non-commercial research or private study), licensing schemes allow to copy and use material protected by copyright under certain conditions. CLA is a licensing body authorised by artists, publishers and visual creators to issue collective licences which allow copying from books, journals and magazines, including certain electronic publications. Other licensing bodies relevant to libraries are DACS (visual arts), ERA (educational recording of TV and radio broadcasting) and the Newspaper Licensing Agency.

 

CLA

http://www.cla.co.uk

DACS

http://www.dacs.org.uk

ERA

http://www.era.org.uk

Newspaper Licensing Agency

http://www.nla.co.uk

 

Primary sources

Law is a suject area where online resources abound, and often information is available from a variety of sources, from value-added commercial databases to free legal resources. For the brave only, this is a selection of primary material (legislation, conventions, treaties, court reports) related to copyright freely accessible:

Copyright, Designs and Patents Act 1988

http://www.legislation.gov.uk/ukpga/1988/48/contents

The Copyright and Related Rights Regulations 2003

http://www.legislation.gov.uk/uksi/2003/2498/contents/made

Paris Convention for the Protection of Industrial Property 1883/1979

http://www.epo.org/law-practice/legal-texts/archive/epc-1973.html

Berne Convention for the Protection of Literary and Artistic Works 1886/1979

http://www.wipo.int/clea/docs_new/pdf/en/wo/wo001en.pdf

Universal Copyright Convention 1952/1971

http://portal.unesco.org/en/ev.php-URL_ID=15241&URL_DO=DO_TOPIC&URL_SECTION=201.html

Rome Convention 1961

http://www.wipo.int/clea/docs_new/pdf/en/wo/wo024en.pdf

Convention for the Protection of Producers of Phonograms 1971

http://www.wipo.int/clea/docs_new/pdf/en/wo/wo023en.pdf

TRIPS 1994

http://www.wto.org/english/docs_e/legal_e/27-trips_01_e.htm

WIPO Copyright Treaty 1996

http://www.wipo.int/clea/docs_new/pdf/en/wo/wo033en.pdf

 

Additional material can be found in the following websites:

 

IPO UK

(UK legislation on copyright, design and patent law)

http://www.ipo.gov.uk/copy.htm

 

European Commission – Copyright

(EU legislation, drafts and other documents)

http://ec.europa.eu/internal_market/copyright/index_en.htm

 

WIPO Lex
(N
ational legislation and treaties on intellectual property of WIPO, WTO and UN members)

http://www.wipo.int/wipolex/en

 

UNESCO – Collection of national copyright laws
(National copyright legislation by UNESCO members)

http://portal.unesco.org/culture/en/ev.php-URL_ID=14076&URL_DO=DO_TOPIC&URL_SECTION=201.html

 

BAILII

(British and Irish primary legal materials, including a large collection of UK court reports)
http://www.bailii.org/form/search_cases.html

 

CVRIA European Court of Justice
(Decisions by this court since 1958)

http://curia.europa.eu/jcms/jcms/j_6

 

Google Scholar: Legal opinions and journals

(Published opinions of US state appellate and supreme court cases since 1950, US federal district, appellate, tax and bankruptcy courts since 1923 and US Supreme Court cases since 1791)

http://scholar.google.com

 

[Grandal Montero, G. (2012) Resources online: IP and copyright legislation. ARLIS News-sheet, no. 216, March-April, pp. 3-4.]

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