You may wonder why as an art buyer, collector or even an art enthusiast you should read about copyright issues? Afterall, the news on these items seems to be about luxury brands and artists fighting against each other.
Yes the debate starts at that point, but the reverberations are felt far and wide. And we feel its important to keep abreast with this aspect of the industry news! So we begin with the broad framework of the copyright issue, and then highlight what it means to anyone who is buying or considering buying art.
Recent ruling by the US Supreme Court against Andy Warhol Foundation (AWF), which used an original photograph by Lynn Goldsmith of Prince (the musician) brought to light the increasingly nuanced and complicated matter of copyright in art.
We wrote about copyrights and art in our article in March 2023. The focus of that article was using original works for promotion of luxury goods, as well as the use of luxury products in the AI and NFT space. Where the boundaries between what is permissible were not only blurred but downright confusing! The discussion continues to expand with new issues thrown in the mix, such as famous artists using works of other artists, without permission, as in the case of AWF vs Lynn Goldsmith.
The complexity of this particular case centred around the interpretation of the new work being ‘transformative’ enough to be considered an original in its own right. In addition, since the work was used by Vanity Fair for commercial purpose (usage is allowed for parody, education or criticism, and not commercial purposes under US law), without permission of the artist, who retained licensing rights, the courts ruled that ‘fair use’ doctrine had been infringed upon and original’ works, like those of other photographers, are entitled to copyright protection, even against famous artists.”
What makes this case even more intriguing is that fact that artist Barbara Krueger and curator Richard Storr had sided with AWF, stating that artists had always referenced and copied each other’s works and AWF should be exempt from infringement on this basis.
The details of the case, and the ruling is available on the internet for reference.
We became particularly interested in this case since the laws in India regarding art (and design) are fantastically opaque. We started thinking how a similar case might pan out under the Indian legislation.
As of now under the Indian laws, the artist has complete ownership of their work during their lifetime plus 60 years. The artist can authorize copyright of specific works to another party for commercial purposes to reproduce, make derivative works, distribute copies of the artwork and undertake public display. However, there is no clear definition of what may constitute transformative works, which reference original artworks. It is also not clear whether certain fields such as education or information dissemination are exempt from licensing requirements.
With the increasing overlap of art forms especially that of AI, the copy right laws in India need to be dusted and brought up to speed to protect artist and their artworks.
Promotion of art in India cannot be without protection of artists rights, or on the flip side be too restrictive to deter free flowing creative process.
Does this mean that as a buyer you are not allowed to share the artwork you own? Yes and no – let us explain. Yes, you can share images of the artwork you currently own, but it is important that you credit the artist, the artwork with its title, medium and dimensions and indicate that the image copyright belong to the artist. The copyright credit is critical, because when you buy an artwork, the copyrights are not passed on to the buyer, and rather remain with the artist. This is sacrosanct across the globe. Therefore, the need to acknowledge that the copyright belongs to the artist, even if it is for non-commercial usage (think festive greeting cards or these days jpegs!). It is expected that when you use an image you inform the artist at the very least, or better still get artists’ approval – they are not averse to the usage of the image, just cautious of the context it appears in. An absolute no-no would be altering the image by the way of using filters or any special effects or adding elements. A note on the side, when auction houses and galleries publish catalogues both online and offline they are allowed the use of the image without getting into the need for copyrights as they are printed specifically for the purpose of sale of the artwork and it assists in the sale of the artwork. However, some artist estates allow the usage only for the duration of the sale, therefore when you are browsing auction sale data some of the images are taken down as the copyright doesn’t belong to the auction nor the buyer!
More on artist estates at a later date.
As an update, the Warhol and Goldsmith sage continues to get weird. Ms Goldsmith recently asked Texas based artist Ryan Sandison Montgomery to delete his artwork from Instagram. Montgomery had made two mixed-medium artworks based on the court case, and posted one on Instagram in March 2023, aptly titled ‘The Artist Formerly Known as Supreme Court as Andy Warhol as Lynn Goldsmith as Prince Not Laughing’!
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