Marginalizing the Maker:
The Status of Authorship in the Digital Epoch
by A. D. Coleman

Will copyright become irrelevant in the electronic age?

Provoked by a polemic penned by the late critic and photographer Derek Bennett, I began considering this question in our last issue by examining the function of copyright in the economic life of those whose work involves embodying ideas and information in physical forms. I concluded by indicating that there was another way in which copyright empowered those writers, photographers, artists and others among us engaged in such labors.

In his germinal essay, "Author as Producer," the German critic Walter Benjamin makes it clear that, as a worker, I have an ongoing, vested interest -- not only economic but also political, and moral -- in the material I generate as a writer. He argues that my job doesn't end with the final draft, but only begins there; in his view, it's incumbent upon me to exercise whatever control I can so as to ensure that, in the way it's edited and published, my work truly ends up serving my original purposes, furthering my commitments and goals rather than those beliefs to which I'm opposed.(1)

If I agree with Benjamin, and I do, how can I achieve such control over my work? After all, prior to publication, it passes through various editorial hands, in a process via which it could be subject to all kinds of alterations. Then, once off the press, my ideas are there on the printed page for any reader to absorb, reject, expand upon, revise; I can't (and wouldn't want to) dictate or overdetermine my readers' responses. By publishing, therefore, I've given those ideas to the world.

My texts, however, are not freely available for anyone's commercial or non-commercial use, because they are copyrighted. Significantly, this not only protects my legitimate, continuing economic relation to my own work but also safeguards that work against unauthorized alteration and undesired recontextualization -- that is, against misuses for which I cannot and should not be held responsible -- both prior to publication and thereafter.

By extension, that reasoning applies to everyone who generates ideas embodied in tangible form -- including artists and photographers. It was on that basis that Federal District Court Judge Charles S. Haight recently ruled in favor of professional photographer Art Rogers, who'd sued the artist Jeff Koons for exhibiting and selling "String of Puppies," a sculptural, polychromed-wood version of Rogers's black & white photograph titled "Puppies." The language of Judge Haight's decision is instructive. He opined that "Koons's sculpture does not criticize or comment upon Rogers's photograph. It simply appropriates it." (Koons had claimed that his use of the Rogers image had constituted fair use, examples of which would include criticism of or comment upon another work.) Having thus raised a specter to haunt every Madison Avenue art director with a MacIntosh as well as every postmodern appropriationist in SoHo, the judge found for the plaintiff because the Copyright Act "confers upon the copyright owner the exclusive rights to do and authorize . . . 'the preparation of derivative works.'"(2)

This enlightened defense of the autonomy of photographers is precedent-setting here; undoubtedly it will undergo further challenge, testing and refinement in the courts. The French have already institutionalized a similarly expanded understanding of copyright in two farsighted laws. One of these is called the droit de suite, which translates roughly as "follow-up rights"; it guarantees artists a share in the future profits from all subsequent resales of their work. (California has adopted a version of this law, which mandates the payment of "resale royalties" to artists and photographers; similar laws are now under discussion in other states. How this will apply to the rapidly spreading practice of using scanned and digitized photos in desktop publishing and computer graphics is of course a particularly thorny question.)

The second of these pioneering French laws is called the droit morale, or "moral right"; it ensures that artists' works must always be properly attributed to them and cannot be altered without their consent after they are sold. (European photojournalists are now demanding a variant of this rule that's specific to their profession; they're calling it the droit de regard, and it boils down to the kind of input into the editorial process for which W. Eugene Smith fought all his life.(3))

Versions of this model law have been passed, or are under consideration, in many countries now, including the United States, where Robert Rauschenberg, among others, has championed it. (Rather ironic, in light of Rauschenberg's "appropriation" of many images in his early silk-screen paintings.) Late last year, after six years' debate, Congress amended the Copyright Act by enacting the Visual Artists' Rights Act (VARA), which grants to some visual artists what a lawyer specializing in the arts -- Barbara Hoffmann, Honorary Counsel to the College Art Association -- calls "limited rights of attribution and integrity." (VARA applies only to paintings, drawings, prints, and sculptures that exist either in unique versions or in limited editions of up to 200 examples, which must be consecutively numbered and signed.)(4)

Such legislation cannot logically be supported without recognizing the clear parallels between it and the necessary assurances that copyright offers to writers; after all, that's why it's an amendment to the Copyright Act. To argue against copyright, therefore, is to dismiss out of hand the essential protection for artists and photographers that is represented by the droit morale and the droit de suite.

If everyone is free to do whatever they feel like with anyone else's work -- re-edit it, change a line of reasoning or an aspect of style, alter its form, put words (or images) into its maker's mouth, publish or present it in contexts they find abhorrent -- then surely any responsible maker of work will feel entitled, even obligated, to disclaim any such version of it as unauthorized, especially if it bears his or her name and thereby carries whatever credibility has accrued to them by reputation. Even with a strong copyright law, such abuses abound; tracking them and ensuring the publication of such disavowals is already not only undependable and after the fact of any damage done but also burdensome, tedious, and costly, as demonstrated by Art Rogers's experience. One doesn't need much imagination to foresee that, absent the copyright law, the instances would multiply exponentially and setting the record straight would become virtually impossible.

Parenthetically, I'd add that the elimination of copyright would let writers, photographers and artists off the hook, too easily, as perpetrators of political acts (for that is, among other things, how all verbal and visual statements made in public forums function). Copyright serves to keep us honest. It makes it less plausible and more difficult for us casually to disclaim our responsibilities to and for our works on the grounds that they were out of our control, that someone else operating without permission altered them or used them in contexts to which we stand opposed.

Fundamentally, what copyright does -- like a signature on a document -- is make one personally and professionally liable for one's actions. In my case, for example, it assures the reader that I've produced and given my consent to the statements he or she reads under my by-line, and have taken responsibility for their consequences; that I've considered and approved the presentational vehicle in which it's appearing; that (inasmuch as possible -- there's always a gremlin) I've authenticated the integrity of that version of my text; and that I'm therefore the one who's due the credit and/or the blame for the life this example of my work leads in the world.

I insist on those as the conditions under which I publish; for, in the last analysis, if I can't be held morally and legally accountable by my fellow citizens for what I say in print, the context in which it appears, and the determinable effects of those choices, what possible weight can my words carry?

Whatever else it may bring, if the digital epoch encourages the diminution of that accountability, I won't consider it a change for the better. To reiterate what I said last month, ideas can't be possessed; but they can and should be properly attributed to those who originated and embodied them in whatever form is under discussion at a particular moment, and the integrity of that form can and should be maintained and respected. In my opinion, the makers of embodied ideas -- among whom I include myself -- should not be marginalized, either legally or conceptually, in their relation to their works. Quite the opposite: they deserve both the credit and the blame, the rewards and the punishments, that are due as a result of the impact their works have on their world.

Notes:

(1) Walter Benjamin, "Author as Producer," in Victor Burgin, ed., Thinking Photography, (London: The MacMillan Press, Ltd.), pp. 15-31.

(2) For a thoughtful summary of the Art Rogers v. Jeff Koons and Sonnabend Gallery, Inc. trial and decision, and the legal issues underlying same, see Barbara Hoffman, "Legal Update: Whose Image Is It?" CAA News, Vol. 15, no. 5 (September-October 1990), pp. 5-6, and the same author's follow-up story, "Legal Update: . . . and the Winner Is," CAA News, Vol. 16, no. 3 (May-June 1991), p. 6. Hoffman -- not a participant in the case -- served at that time as Honorary Counsel for the College Art Association (C.A.A.).

(3) For a report on the opening salvo in the battle for the droit de regard, see my account of the 1989 Rencontres Internationales de la Photographie, "Letter From: Arles, No. 6" Photo Metro, Vol. 8, no. 72 (September 1989), pp. 24-25.

(4) Hoffman, "Legal Update: . . . and the Winner Is," loc. cit.

This essay first appeared in Camera & Darkroom Photography, Vol. 13, no. 11 (November 1991). It subsequently appeared in my book The Digital Evolution: Visual Communication in the Electronic Age, Essays, Lectures and Interviews 1967-1998 (Nazraeli Press, 1998; second edition, Villa Florentine Books, 2002).

back to top