In yesterday's New York Times, a lawyer named Michael Rips presented a piece entitled "Fair Use, Art, Swiss Cheese and Me" about the artist DavideSalle's use of a picture of him. He ends:
It is David Salle and the artistic movement with which he is associated, and to which he has greatly contributed, that give value to his paintings — and not, sadly, my image. For those who believe otherwise, I have boxes of old photographs I would be happy to sell.This is an important point not just about fair use but about the artistic commons: something of ours may be used in a work, but that doesn't mean that we have contributed to the work. That something of ours, also, should (for the most part and certainly after a limited period of time) be in the commons anyway, making it all of ours so open to the use of any one of us. This helps all of us.
The specter of copyright violation, as "copyright" is interpreted increasingly liberally and extensively by both courts and legislative bodies, threatens to put a damper on creativity in numerous areas. Museums have:
argued that they would be forced to hire lawyers to investigate their collections for works containing borrowed images, and given the ubiquity of such images in 20th-century art, the cost to the museums would be unsustainable. The more likely, though no less troubling, alternative is for museums to censor what they exhibit.If museums feel they must censor, artists will censor themselves... as musicians are already doing from fear of infringement.
This does not bode well. The need for a commons is enshrined in the US Constitution in Article 1, Section 8, where Congress is empowered:
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.The time limit is there to ensure that a growing commons exists for creative artists of all sorts to draw upon while, at the same time, making it possible for writers and discoverers to make a reasonable profit from their activities before the results become part of the commons.
Today, the commons is being strangled. There are rays of hope, though. Rips' understanding of the real source of value in art is one.