Copyright is an exciting subject that over the last couple of years has received a great deal of attention. Unfortunately most of this attention has been a discussion on the uses and abuses of copyright in the copying of music and films of the Internet. This has had the effect of very much excluded a large part of the interesting social aspects of copyright.
The other life of copyright go beyond the questions of economics and power positions. While the latter are important they are not the only game in town. Beyond the strutting and blustering pirates and anti-pirates (please interpret these terms kindly) there are several examples of people attempting (successfully and unsuccessfully) to use copyright to protect values and positions. Some of these are attempts to control as in the more traditional form but other examples seem driven more from a need to maintain an “artistic” integrity.
The purpose of this post is to present some of the odder examples in the copyright discussion. This is not solely for shock value – even if this is worthwhile in of itself. The purpose is to promote a larger copyright discussion in order to develop a better understanding of the purpose and method of copyright.
Graffiti copyright (see Morgan 2006)
No matter if you like of dislike graffiti it is a form of artistic expression and it is protected from the moment of production. The owner of the wall owns the physical copy of the graffiti but intellectual property rights, the copyright, remains with the graffiti writers and artists.
An interesting problem to deal with is the issue of popular stencil graffiti (see for example Banksy). In part stencil graffiti is popular since it is a fast way in which to create graffiti while minimizing the risk of being caught (Banksy Wall and Piece 2005). However the question of stencil graffiti is whether or not it is copyrightable. If you ask any Banksy fan they will say that without a doubt that the work is art and naturally subject to copyright.
This means that the artist has the exclusive right of reproduction. Taking photographs of graffiti and placing them on the web (as I often do), on t-shirts, in photographic books etc is not permissible without the permission of the artist.
The moral rights of the artist (in some jurisdictions) contain the right to be associated with the work (droit à la paternité) and the right not to have the work displayed in a manner that disrespects the work or the artist (droit au respect). These latter rights ensure that the work is not reproduced anonymously or in a disrespectful way they cannot be used to protect the physical work. The owner of the wall can deface or erase the physical copy without fear of violating the moral rights of the artist.
Bodies of expression: Tattoos (Hatcher 2007)
Graffiti is, in reality, relatively easy. The only problem is that many people associate it with vandalism. But this is not a problem for copyright law. Many pieces of “bad” art are widely accepted and integral parts of our cultural heritage. Bad art is not a limitation for copyright – just look at Madonna.
A much more exciting area of copyright is tattoos. The cast of characters and the social implications of tattoos is much wider and provides for an exciting range of questions ranging from copyright to human rights.
The first question is naturally – who owns the copyrighted image?
- The person wearing the tattoo (the client)
- The tattoo artist
- The tattoo studio
- Someone else
Hatcher (2007) has an excellent slide presentation on this very topic. The claim of the client is naturally that she/he has created a work of art that is a combination of the human body and the tattoo. If this line of argument were to be drawn out fully then bodybuilders would have copyright in the bodies too? The counter-argument is that the client has done nothing other than paid (in cash and pain).
This is fascinating problem that goes to the core of the copyright question – who is the artist? Is the artist the person who physically creates or is it enough to have a conceptual model and then let someone else create? This is a fascinating question that will require more work later.
The tattoo artist has a good claim to the copyright. In much the same way as the graffiti example above the client would then own the physical copy on the body while the artist owns the intellectual rights to the image. This model would prevent copying and photography without permission. But then we may argue that the artist does nothing more than copy a stencil onto the body. If this is true then either the work is too simple to have protection under copyright or the copyright holder is someone else.
If we chose to see the artist as hired laborer then this someone else may be the owner of the tattoo studio. The work may also be the property of a third party – for example if you tattoo Pondus onto yourself the intellectual property rights still belong to Frode Øverli.
So what happens when celebrities appear in advertising campaigns prominently showing their tattoos? Is this a permissible reproduction? (Vukelj 2005) And if not would this mean that the client is not allowed to display photographs of herself/himself without the permission of the copyright holder? How can we relate this to human rights law? (see for example Ramachandran 2006)
Another question is what are the limits of tattooing? Are there tattoos that would be illegal? For example gang symbols or maybe blasphemy? This is another off-topic question that could be explored.
Another exciting thing about tattoos is that they are culturally sensitive. Is the craze for tribal tattoos a violation of the rights of the tribes or tribal artists they originate from?
Food for thought (excuse the pun)
So we have copyright in skin and wall art. Where else? Several chefs have been attempting to use IP law to protect their intellectual innovations in the kitchen. But thus far they have been unsuccessful.
Chefs have traditionally worked on an open-source model, freely borrowing and expanding on each other’s ideas and, yes, sometimes even stealing them outright. But some influential people are now talking about changing the copyright law so that chefs own their recipes the same way composers own their songs. Under this plan, anyone who wanted to borrow someone else’s recipe would have to pay a licensing fee. (Pete Wells)
Magical methods
The magician on stage presents the audience with an illusion. Once the audience knows how the magic is carried out they will no longer pay to see it. Therefore the skill and ingenuity of the magician needs to be protected from copycats (Wikipedia). Loshin (2007) argues that the community’s efforts to safeguard their IP is based upon a balance of protecting and sharing. In the case of magic the law is inadequate and the community of magicians are better served by using the internal norms that pre-exist in the community.
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This was supposed to be a much shorter post but as with all things of interest it grew as exciting questions reveal themselves. The use of copyright in untraditional forms has sometimes been granted as an obvious way to go and in other cases been prevented.
Which acts are protected by copyright and which are not is based more on historical and traditional arguments and their interpretation rather than a coherent systematic development. These “fringe” areas of copyright are important and need to be developed further in order for us to more fully understand the social purpose of maintaining and developing the copyright system.
