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Public domain grows more private
By Eils Lotozo
INQUIRER STAFF WRITER
It used to be that most artists were doomed to labor in obscurity.
But lately the work of a growing number of painters, filmmakers, photographers and musicians has been attracting the attention of major corporations. Love for art has nothing to do with it.
"Illegal Art: Freedom of Expression in the Corporate Age," making its last stop on a national tour at Old City's Nexus Gallery, features photographer Tom Forsythe's "Food Chain Barbie" series, which drew a lawsuit from Mattel; painter Natalka Husar's reimagined covers of old romance novels, now the subject of a legal battle with publisher Harlequin; and comic artist Kieron Dwyer's parody of the Starbucks logo, which got slapped with a suit by the coffee chain.
Illegal Art
"Freedom of Expression in the Corporate Age," at Nexus gallery, 137 N. Second St., 215-629-1103. Illegal Art films are Oct. 15-19 at the Prince Music Theater, 1412 Chestnut St. For screening, conference and workshop information: 215-563-1100 or www.mediatank.org.
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Among the musical offerings is a Public Enemy song that samples a Beatles tune. The cut had to be pulled from the pioneering hip-hop group's latest album after Capitol Records and the surviving Beatles demanded a prohibitively large clearance fee.
"Artists have always borrowed, appropriated and commented upon culture," said "Illegal Art" curator Carrie McLaren, publisher of the Brooklyn-based Stay Free! magazine. "It just so happens nowadays that the popular culture is privately owned. What we wanted to do is with the show was spark some public debate about copyright."
Just a few decades back, artist Andy Warhol could turn images of Brillo boxes and Campbell's Soup cans into art without corporate challenge. Now it's a different world.
Here in Philadelphia, the "Illegal Art" show has become the centerpiece of a monthlong series of panel discussions and film screenings on the hot topic of copyright.
And around the country, copyright concerns are fueling a grassroots movement that brings together artists frustrated by the corporate lock on popular-culture icons, musicians pondering the distribution of their work in the era of sampling and Napster, and technophiles worried about the ways that new digital copyright-protection technology is fencing in the formerly wide open electronic frontier.
More than protecting those who create, this growing chorus of critics says, the current copyright system serves to enrich big corporations, stifle innovation, silence social criticism, and impoverish the culture.
"Artists in all fields are asking, 'Is this going to get me sued?'," said Siva Vaidhyanathan, author of Copyrights and Copywrongs: The Rise of Intellectual Property and How it Threatens Creativity. "When that is the first question the artist is asking about a work, we've already retarded the creative process."
"What we're getting is less shared knowledge and more rich middlemen," said Gigi Sohn, a lawyer and cofounder of Public Knowledge, a new Washington lobbying group aimed at raising alarms about what it sees as a shrinking public domain.
To the founding fathers, who provided for a copyright term of just 14 years in the Constitution, the purpose of granting copyrights and patents wasn't to protect property rights but "to promote the progress of Science and useful arts."
The idea was to spur creation by giving creators a chance to profit from their labors, said David G. Post, a Temple University law professor and expert on copyright. But the founders did not envision the growth of the entertainment industry or the rise of media conglomerates. "The inventory of the world's corporate assets isn't in oil or factories or tangible things anymore," Post said. "It now consists largely of intellectual property."
Some companies are so avid about increasing their stores of intellectual property that there is a stampede to protect "business methods." Firms have patented new types of credit-card offers, and Amazon patented "one-click" shopping - and battled Barnes & Noble in court over infringement. The online movie rental company Netflix boosted its stock by patenting a way for customers to make a film wish list. Last year, the U.S. Patent Office received 5,000 applications for business-method patents, which are good for 20 years.
But for companies that own vast catalogs of music and libraries of film, hanging on to copyrights is where the real money is, which explains the pressure to increase the length of copyright protection. The most recent victory came in 1998, when Congress boosted copyright terms by 20 years: to the life of the creator plus 70 years for an individual, and to 95 years for works owned by corporations. Heavily lobbied for by Disney, Time Warner, and other entertainment companies, the change of law came just as many classic films such as Casablanca and The Wizard of Oz, and early cartoon incarnations of Mickey Mouse, were set to pass into the public domain.
Vaidhyanathan, assistant professor of culture and communications at New York University, said the fact that almost nothing produced in our lifetime will go into the public domain - where it can be used by anyone with impunity - is only one aspect of what he sees as an unbalanced copyright system.
"Copyright holders are much more aggressive about threatening to sue," Vaidhyanathan said. "They're basically trying to scare the public away from a variety of uses of copyrighted material that used to be considered OK."
Some copyright holders are using such threats to limit criticism, he said, citing the case of a Web parody of now-defunct Talk magazine. Publisher Miramax sent a cease-and-desist letter to the Internet service provider, and the site disappeared. "They took it down, even though parody is considered fair use. An ISP is not going to defend consumer free-speech rights."
Among the more widely publicized copyright cases was the Fox New Channel's failed attempt to sue humorist Al Franken for using the network's slogan "Fair and Balanced" in his latest book's title, and the unsuccessful efforts of the estate of author Margaret Mitchell to halt the publication of Alice Randall's The Wind Done Gone: A Novel, her retelling, from a slave perspective, of Gone With the Wind.
"The lesson of this is if you have Houghton Mifflin backing you up, you can get your stuff out there," Vaidhyanathan said. "That is how the system is working right now. P. Diddy has no problem sampling other artists because he has a lot of cash and a lot of lawyers on his side. But what if you're the next-generation P. Diddy?"
The trend to constrain appears to be spreading, with copyright holders large and small finding new ways to extract profit from their properties:
In 1995, the American Society of Composers, Authors & Publishers (ASCAP), which collects music-performance fees for four million copyrighted songs, began to collect license fees from summer camps to perform sing-along songs such as "This Land Is Your Land." Among the publishers it collects for is an arm of AOL Time Warner, which owns the song "Happy Birthday to You."
Increasingly, documentary filmmakers must get clearances for songs, product advertising on a billboard, and other copyrighted material that crops up incidentally in their footage, things that once passed under the copyright radar. In one case, a few minutes of The Simpsons visible on a television in the background in a film about an opera company got the director slapped with a licensing fee of $10,000.
Real-estate companies have begun to demand that stock-photo agencies pay "licensing fees" for their buildings to appear in photographs.
"The one [example] that disturbs me the most is that there are now companies that go around to elementary schools and day-care centers and tell them they have to pay a performance fee to show a kids' video," said Haddonfield filmmaker Jed Horovitz, whose documentary Willful Infringement explores the cultural consequences of aggressive copyright enforcement.
Horovitz has a personal stake in the issue. He's fighting a $110 million copyright infringement lawsuit filed by Walt Disney Co. Horovitz caught Disney's notice when the small movie-preview company he runs began providing previews to online retailers and library Web sites.
"I've been a filmmaker for years, and I'm a copyright holder, but I think the whole situation is just outrageous," said Horovitz, who includes in his documentary a California children's-party performer who received a cease-and-desist letter from Disney for twisting balloons into the shape of the Genie from Aladdin.
When asked about the reasoning behind this action and copyright enforcement in general, a Disney spokeswoman had no response by press time.
The irony in all this, Public Knowledge's Sohn said, is that Disney would have little intellectual property to protect without its free borrowings from materials in the public domain, among them the tales of Hans Christian Andersen, the Brothers Grimm, Victor Hugo, Rudyard Kipling, and classical mythology. Mickey Mouse's progenitor, Steamboat Willie, was a takeoff from a Buster Keaton movie.
"The notion that this creation is mine and no one should have access to it, or be able to build upon it, ignores the history of creativity in this country and the world," she said.
"Copyright is now a very strong right and it lasts a long time," said Temple's Post. And corporations that aggressively pursue any signs of copyright infringement are simply acting within their legal rights. "Should they be allowed to do this is an open question for us to decide."
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Contact staff writer Eils Lotozo
at 215-854-5610 or elotozo@phillynews.com.
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