Copyright & Follow-up Rights

James Pomerantz, publisher of  the blog A Photo Student, whom I castigated recently for posting a 1971 article of mine without permission, considerately pointed me toward another site that had the same scan of that 1971 Diane Arbus obituary online illegally. The site’s Listal.com, which allows members to join anonymously and, also anonymously, to post lists of things they like, don’t like, etc. Publisher Tom Mascord, a Brit web designer, describes Listal.com as a “social network.”

All fine so far. And the site’s “Terms of Service” include these provisos:

1. You are responsible for all Content posted and activity that occurs under your account.
2. You may not use the Service for any illegal or unauthorized purpose. You must not, in the use of the Service, violate any laws in your jurisdiction (including but not limited to copyright laws). Violation of any of these agreements will result in the termination of your Account.

But that didn’t prevent one Isa Ramos, self-described as a 20-year-old Brazilian student, from posting a list of “Suicide Photographers” that includes images by Diane Arbus, Kevin Carter, Pierre Molinier, Francesca Woodman, and several others. All of them illustrated with images by those photographers, from whom I doubt seriously that Ramos solicited permissions.

Certainly she solicited none from me for the use of my article, which the site indicated had appeared online there since November 16, 2010. So I sent publisher Tom Mascord the same cease and desist email I’d sent to Pomerantz, to see if he’d live up to his word and cancel Ramos’s account.

I suspect that, Mascord’s disclaimer notwithstanding, Listal.com is a deep repository of pirated IP. Enabling anonymous membership — an email address, a login name, a display name, and a password — makes any member almost impossible to trace. That’s pretty much a standing invitation to ignore copyright and swipe IP, even in cases like mine, where a link to a legitimate, authorized online appearance of my article — the most likely source for Ramos’s pirated copy — could easily have been created.

I’m pleased to report that Mascord removed the illegally posted scan of my article promptly upon receiving my notification of the infringement. However, the post by his subscriber Isa Ramos remains online, and it includes nine images by these nine “suicide photographers,” all of them almost certainly published there without permission from the copyright holders. Ramos has other posts up with more copyrighted images, like this one with 33 photos by Richard Avedon. Mascord can no longer pretend to ignorance of such use of his site by subscribers to distribute pirated IP. Which in turn suggests that Mascord’s warning, “Violation of any of [copyright law] will result in the termination of your Account,” isn’t intended to be taken seriously by anyone.

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On August 7, in response to the second of these posts, one Kyle Newberry wrote — not in a public comment here at my blog, but in a private email to me — “You’re dinosaur bones” . . . Just those three words, not even a period.

I realize that this is what passes for thoughtful opinionation, nuanced argument, and scathing rebuttal amongst the cohort I think of as Generation Tweetie — GenTweet for short. Indeed, by the emerging standards of brevity in communication Newberry probably qualifies as verbose; and at least he understands the function and placement of the apostrophe. But, for those of you concerned with the quality of the discourse about and around photography, I say, be afraid . . . be very afraid.

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Meanwhile, Peter Marshall, whose Re: PHOTO blog initially brought the Pomerantz infringement to my attention, has done a brief follow-up as part of “Blogs & Copyright,” which he posted on August 14.

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Droit de Suite Should Cut Both Ways

Since I’m on the subject of rights, a few words about “follow-up rights,” recently in the news. (See “US Congress lobbied over resale rights” by Helen Stoilas in The Art Newspaper, August 4, 2011.)

This idea originated in France, where they call it droit de suite, which translates roughly as follow-up rights. It’s legally established in France and some other European countries, as well as in the UK, though it differs from one nation to the next. For a basic tutorial on the UK version of this law, click here.

There’s no equivalent federal law in the States; the concept’s back in the art-world headlines because the New York-based Artists’ Rights Society (ARS) has renewed its push for federal legislation to this effect. California adopted it in 1976 as a state law, the California Resale Royalty Act, but no other state went along. (Puerto Rico also has a law enabling this on the books.)

Robert Rauschenberg fronted the push for the California statute. (Here’s a tutorial on the California Resale Royalty Act, from which you can download the pdf of “A Seller’s Guide.”) As reported in a story on this subject in The Art Newspaper last year, “[In] 1973 . . . Robert Rauschenberg notoriously shoved collector Robert C. Scull at an auction at which Scull resold the artist’s work for quite a bit more than he originally paid for it. (A Rauschenberg work that Scull had bought for $900 was resold for $85,000.” See “The case for droit de suite in New York” by Edward Winkleman, datelined April 28, 2010.) I’ve tried without success to imagine such behavior in any other market context. For example: You buy a block of stock in a company I’ve built for $1000 during an IPO, you unload it later for $100K, and I push you to the ground publicly in a Rauschenbergian hissy fit.

As that suggests, I’m not persuaded yet that we need this proposed law. If it does benefit artists (and there’s debate about that), it serves only those artists whose works resell in the secondary market for figures higher than their original prices. But it also creates a complex set of logistical chores for dealers, auction houses, and collectors, who would have to have access to a database of current addresses for many thousands of artists in order to fulfill this requirement, or some alternative way to put those percentages of profits into some kind of escrow for artists to claim if they can’t be reached immediately. In other words, it mandates the creation of some bureaucratic structure to oversee and manage the revenues and the procedures.

Perhaps more problematically, it goes against the way we deal with almost all other forms of physical property. If I sell you my car or house, even singular ones I designed and built myself, and you re-sell them at a profit, I don’t share in your profit as a matter of law, but only if we’ve made a special, indeed unique, contract to that effect.

Furthermore, if I share in the profit, shouldn’t I also share in any loss if the work decreases in value? What if it goes down in price, and the buyer has to sell at a loss? Suppose it holds its original dollar value ($1K, say), but in an inflationary context — meaning it’s worth less each year because with 9 percent annual inflation the $1K you can get for it in 2011 is only worth $500 in 2006 dollars, the year you bought it? Do I as the maker agree to share in that decrease? And suppose it needs repair or conservation due not to any fault of yours as owner but due to something in the nature of its materials, chosen by me, or in my process of facture? Why shouldn’t I, as the maker, have to share those expenses with you?

For example, due to his practice of slathering on thick layers of heavy paint, Robert Motherwell’s paintings famously spend a great deal of time “in the shop,” requiring much maintenance — rather like a Fiat. Why shouldn’t he have to pay for that?

So I envision this as difficult to install (requiring both federal and state legislation) and cumbersome to manage. As it’s now defined, it constitutes a unilateral burden — unilateral in the sense that it costs the artist nothing, except the time involved in keeping his or her entry in the contact database at the ARS office current. Everyone involved in any resale after the work gets sold the first time has to jump through those hoops, which I think more likely to discourage collecting than encourage it.

Beyond those practical matters, it sets a precedent for the handling of certain types of property that, for no good reason that I can see, puts physical works of visual art into a separate and special class of objects — different from films, musical works, books and writings, etc. I’m not convinced that it’s a good idea to create a law that specifically and exclusively privileges makers of particular types of artworks. The California statute covers only “an original painting, sculpture, or drawing, or an original work of art in glass.” Great for Dale Chihuly and Louise Nevelson, lousy for Nan Goldin and June Wayne. The EU-UK model casts a wider net, including “any work of graphic or plastic art” . . . but not a sound-based installation, nor a video projection.

Keep in mind that in selling a work of visual art — a painting, a sculpture, a photographic print — the artist doesn’t commonly sell the IP rights thereto. The artist gets to benefit for decades from the licensing of all IP rights to the work, as do his heirs and assigns. Presumably the artists cheering on the follow-up rights campaign don’t intend to give any share of that income to collectors of their works. But shouldn’t that be part of any droit de suite deal?