Authorship in the Twenty-First Century: Artist vs. Institution?
Lubna El-Gendi, DePaul University College of Law
Lubna El-Gendi, Authorship in the Twenty-First Century: Artist vs. Institution?, in Andrea Wallace and Ronan Deazley, eds, Display At Your Own Risk: An experimental exhibition of digital cultural heritage, 2016.
Technology has always served as an agent of change, forcing industries, systems, institutions, communities, and people to evolve and adapt as the world’s technological capacities constantly expand. The art world has not been shielded from such evolutionary influences and our ever increasingly digital world has for several years now, if not decades, continuously forced institutions to reevaluate their stewardship of, and policies concerning, art and cultural artefacts. Society today engages with art in ways that were indescribable mere decades ago, changing the relationships individuals and societies have with art and artists. This has had a direct impact on the institutions that have historically served as intermediaries, the conduits through which society interacted with art. In their struggle to adapt to the overwhelmingly digital nature of today’s world, many institutions have enacted policies that call into question the concept of authorship, and whether it should, or should not, apply to institutions.
Cultural institutions are digitizing their collections and putting images of works online in an effort to generate interest and make their collections more widely available. However, while many institutions are attempting to bring their collections into the digital realm, many are simultaneously claiming rights in, and restricting use of, these digital images, including images of works that are in the public domain (Wallace 2015). The policies concerning the use of digital surrogates of works in their collections that many institutions have adopted function in particular to vest the institution with ‘quasi moral rights.’ (Crews 2012, 830). The assertion by the institution of ‘simulated claims of moral rights’ (Crews, 828) can create tension between rights claimed by the institution and those vested in the artist by various national and international legislative regimes.
While traditional copyright protections are often viewed as granting the author of a creative work economic rights, moral rights are personal to the author and typically protect the author’s reputation and identity, as well as the integrity of the work. (Crews, 802; Rosenblatt 1998). Moral rights commonly encompass two primary rights: the right of attribution and the right of integrity. The right of attribution generally ‘grants the author a right to ensure recognition (or lack thereof), as a work’s author,’ (Aharoni 2009, 106) while the right of integrity ‘grants the author the right to intervene when the author feels that a third party has modified the work in a way that impugns the author’s honor or reputation.’ (Aharoni, 106). Moral rights are only afforded to authors (Crews, 817) and because these rights are considered personal to the author, they generally are not transferable and remain with the author even if the author has transferred or sold his or her economic rights in the work.
The level of protection granted to authors, both with respect to the nature and duration of rights, differs from country to country. While France has long protected the moral rights of authors, respecting a wide array of rights that ‘last for eternity’ (Aharoni, 106-108), the US was slow to recognize moral rights and, once it did, did so only in limited scope. It was not until 1990, with the passage of the Visual Artists Rights Act (VARA), 17 U.S.C. § 106A, that the US formally recognized moral rights. Before that time, however, several states had already passed their own legislation, and US courts had provided some fledgling protection for some moral rights through various legal concepts, including ones traditionally associated with trade mark law. (Rosenblatt). Under the US statutory scheme, authors of a narrowly defined category of visual art are granted limited moral rights, in most cases only for the duration of the lifetime of the artist, although such protection is extended for the duration of the economic rights in the work (typically, the life of the artist plus seventy years) if it was created before VARA was enacted and title to the work remained with the artist. (Aharoni, 130)
Moral rights were enshrined in the international intellectual property protection scheme in 1928 through the addition of Article 6bis to the Berne Convention. (Aharoni, 105). Article 6bis falls somewhere between France and the US, calling specifically for the rights of attribution and integrity to be granted to authors, independent of any economic rights, and for these rights to ‘be maintained’ after the death of an author until ‘at least the expiry of the economic rights.’ (Aharoni, 105 (quoting Article 6bis)). Article 6bis, however, stipulates that countries ‘whose legislation, at the moment of their ratification of or accession to this Act, does not provide for the protection after the death of the author of all of the rights set out in the preceding paragraph may provide that some of these rights may, after his death, cease to be maintained.’ (Aharoni, 105 (quoting Article 6bis)).
As a preliminary matter, such institutional policies may violate the moral rights of authors whose rights are protected under legislative schemes that are very broad and deferential to authors. For example, the provisions of the French moral rights regime are very broad and favourable to the author, going beyond the protections called for by the Berne Convention. The French statute, which proclaims that ‘[a]n author shall enjoy the right to respect for his name, his authorship and his work,’ paints a wide array of acts as violations of moral rights, at the ‘free choice’ of an author. (Aharoni, 122). One such violation under the ‘all-encompassing’ language of the French statute is the ‘addition of an unauthorized but ‘neutral’ preface to a newly-translated book.’ (Aharoni, 122). It is thus conceivable that institutional policies and guidelines that require or request that the institution be named alongside the author in the credit line may run afoul of the French law and other similarly expansive moral rights statutes. Despite this, however, most institutional policies and guidelines require or request attribution to the institution, even if they do not restrict use of the digital images or otherwise claim any copyrights or other rights in the images.
In any event, even if they do not violate the actual terms of moral rights statutes, institutional claims to moral rights demand a much deeper examination, one that looks to the purpose of moral rights and the different nature of the relationship between the author and his or her work and that of the institution and the work. ‘The concept of moral rights … depends on the connection between an author and her creation,’ with moral rights aimed at giving the author the ability to ‘control the eventual fate’ of his or her work (Rosenblatt). This right is considered the moral right of the author, the creator of the work (Rosenblatt). Yet, institutional policies seek to assert this control in place of the author, even though ‘museums as the owner of the original work of art or the supplier of a photographic image generally do not have claims of moral rights.’ (Crews, 831).
This is particularly evident in the institutional policies that dictate the specifications of the digital images that may be used by the public. The commonly protected moral right of integrity grants authors the ability to ‘object to any distortion, mutilation or other modification of, or other derogatory action in relation to, the said work, which would be prejudicial to his [or her] honor or reputation.’ (Aharoni, 105 (quoting Article 6bis)). Although this right is vested in the author, institutional policies often contain terms detailing the exact way in which the digital image of the work may be viewed, reproduced, and shared, listing the permissible resolution, size, materials the image may be printed on, and other such specifications. The Carnegie Museum of Art for instance, provides that digital reproductions ‘must be low-resolution’ while the Brooklyn Museum of Art goes further in not only requiring that digital reproductions be low resolution, but specifying that ‘[w]hen permission is granted for web sites, the image can be no longer than 800 pixels on the longest side.’ (Crews, 827). Other institutions specify the acceptable ink and paper that may be used to print digital images; for example, the Portland Art Museum dictates that ‘reproductions must not be cropped, bled off the page, printed on color stock, or with colored ink, nor have anything superimposed on the image.’ (Crews, 827)
Such practices are even more problematic when they encompass digital surrogates for works that are already in the public domain. ‘Nearly every museum today asserts intellectual property rights in reproduction images of public domain works in its collection.’ (Hamma 2005) Given that public domain works are ‘works whose age precludes continued protection under copyright law,’ (Hamma) the assertion of rights, including moral rights, in images of such works creates an inherent tension. Under many moral rights protection schemes, including the US statutory regime, moral rights in a work expire with the death of the author. If moral rights are recognized beyond the death of the author, it is typically only for so long as the economic rights remain actionable. Yet the policies of many institutions routinely extend claims to moral rights to works in which no one holds any rights, economic or moral, and over which there are no statutorily mandated use restrictions.
Even museums that do not place any restrictions on the public’s use of digital images of public domain works often still require at least a particular attribution. Europeana’s Public Domain Usage Guidelines apply to use of digital surrogates made available through the portal and provide ethical standards for museums to incorporate into their terms and conditions (Europeana n.d.). The Guidelines encourage the public to ‘give credit where credit is due’ and protect the reputation of creators and providers (that is, the cultural institution), as ‘the more you credit the institution the greater the encouragement to put more public domain works online.’ Europeana’s Guidelines, however, are just that: guidelines for use of the portal. Yet, cultural institutions have incorporated these guidelines into their use policies in different ways, with the ‘terms asserted … typically couched as if they were binding provisions of law’ and not merely guidelines. (Crews, 806)
For example, the Museum Fur Kunst und Gewebe Hamburg (MKG) incorporates the Guidelines in its ‘Terms and Conditions’ for the MKG Collection Online and allows for unrestricted use of all images that are tagged as public domain. It then requests that users credit the artist as well as ‘the museum and include . . . a reference to MKG Collection Online.’ (MKG Term and Conditions). Importantly, however, the MKG’s policy lacks the following key phrase from Europeana’s Guidelines: ‘This usage guide is based on goodwill. It is not a legal contract. We ask that you respect it.’ Thus, the MKG’s terms and conditions appear to operate (at least unintentionally) as a binding contract for the reuse of its digital collection.
Some policies go even further, resurrecting the moral rights of the author and extending such rights beyond applicable statutory provisions. For instance, the MKG asks users to ‘show respect for the original work’ by clearly indicating and attributing any changes to the original work and refraining from using the ‘name or logo of the artist/maker or the museum’ to endorse any modified work, in order to ‘protect the reputation of creators and providers.’ (MKG Terms and Conditions). Without the Europeana disclaimer that the policy is nonbinding, institutions in a sense create perpetual moral rights over the digital reproductions of works in their collections, sometimes going so far as to vest in themselves rights which even the author may have never enjoyed (for instance, the US Supreme Court, in Dastar Corp. v Twentieth Century Fox Film Corp., 539 U.S. 23, 32, 37 (2003), held that ‘there is no right under the law of unfair competition for the original author to be credited as the sources of materials that have entered the public domain.’ (Crews, 814, n.54)).
While the scope of an author’s moral rights generally ‘differs with cultural conceptions of authorship and ownership’ (Rosenblatt), institutional policies are acting to confer on cultural institutions a level of control over digital images that has customarily been awarded to authors, a category within which institutions do not readily conceptually fit and have not previously been included. As ‘images have become increasingly regarded as assets and as the preferred delivery venue for images has become increasingly an electronic network, the question of whether to allow free access and reproduction has become vitally important and complex,’ (Hamma) particularly when looking at images of works that are, or should be, in the public domain. Yet industry wide best practices or uniform standards have not developed, and instead we see vast divergence between the policies that cultural institutions have developed to address these issues, leading to much debate about these policies. While there may be valid reasons for some of these institutional policies (see Crews), which may in some ways fit within an institution’s mission, institutions and the public would perhaps be better served through the development of industry wide best practices, rather than the assertion of simulated moral rights, or, in the case of rights claimed over works in the public domain, surrogate moral rights (Wallace).
Aharoni, G. ‘You Can’t Take it With You When You Die … Or Can You? A Comparative Study of Post-Mortem Moral Rights Statutes from Israel, France, and the United States’ (2009) 17 U. Balt. Intell. Prop. L.J. 103
Crews, Kenneth D., ‘Museum Policies and Art Images: Conflicting Objectives and Copyright Overreaching’ (2012) 22 Fordham Intell. Prop. Media & Ent. L.J. 795
Europeana, Public Domain Usage Guidelines, n.d., available at: http://www.europeana.eu/portal/rights/public-domain.html (accessed: 25 April 2016)
Hamma, Kenneth, ‘Public Domain Art in an Age of Easier Mechanical Reproducibility’ (November 2005) 11:11 D-Lib Magazine
MKG Collection Online, n.d., available at: https://sammlungonline.mkg-hamburg.de/en/node/2
Museum Fur Kunst Und Gewerbe Hamburg Terms and Conditions, n.d., available at: http://www.mkg-hamburg.de/en/contact
Rosenblatt, Betsy, Moral Rights Basics (1998), available at: https://cyber.law.harvard.edu/property/library/moralprimer.html (accessed: 25 April 2016)
Wallace, A., ‘What are Surrogate IP Rights?’ (22 October 2015), available at: http://surrogateiprights.org/what-are-surrogate-ip-rights-introduction/ (accessed: 25 April 2016)