Scene from any of the last few centuries: An artist paints a picture and attempts to exhibit and sell the work.
Scenario possible only over the last decade: The artist's image is scanned into a computer, placed on the Internet and downloaded worldwide, wherever someone wants a copy of the artwork.
Fortunately for Michael Whelan, a book illustrator in Danbury, Conn., a friend happened to be looking through a computer bulletin board when he came upon a few of Whelan's images being offered for sale.
Nowhere, however, did it say that Whelan was the artist, and, in fact, the copyright notice had been deleted. The images themselves had been altered with, in one case, mountains replaced by a sign that said "Welcome to the World of Macintosh."
At least two copyright laws were violated by an unknown number of electronic services that had appropriated Whelan's work.
If Whelan was lucky to have a friend find his work on a computer bulletin board, New York City illustrator Bill Lombardo was less fortunate. A friend found his work on a bulletin board, but, Lombardo said, "before I could bring a lawsuit, the company that had done this had gone out of business."
It was slightly easier to steal Lombardo's work than Whelan's because Lombardo creates images directly on the computer -- sending disks of his artwork to the companies that employ his services, which unfortunately allows anyone with access to those disks to copy his designs.
Printed images scanned
Whelan, on the other hand, is a painter whose works were reproduced on or in books. To appropriate them, someone needs an electronic scanner to pick up the image from a book (or print or poster). The image then becomes "digitalized" within a computer.
The danger that scanners pose to an artist's copyright isn't just a point of arcane concern for artists. Most major advertising agencies, design studios and magazines have this advanced equipment.
Picture-resolution is so good with these high-powered computers that it is now far more difficult to determine which is the original and which is the copy than it was in the pre-computer past, when photographic reproduction was the main source of copyright infringement.
"The ability of so many people to gain access to an original work of art in this way, the ease with which images can be digitalized, manipulated and then transferred, overshadows the question of right and wrong for a lot of people," said Paul Bassista, executive director of the Graphic Artists Guild.
"It is now so easy to do, and the chances of getting caught relatively nil, that people believe that infringing on an artist's copyright is basically OK."
New computer technology has presented a serious challenge to artists' copyright protections. Copyright -- the right of authors and artists to control the use of their artistic work -- involves the exclusive use of private property, while the computer world values usable and immediate public access.
Ethos of Internet
"The ethos of the Internet," said Marci Hamilton, a professor at Cardozo Law School of Yeshiva University in New York City, "is that anything online may be downloaded, cut, copied and sent along to others."
Copyright has proven to be an elastic concept over the two centuries that it has existed in law.
Statutes first referred exclusively to the printed word but were later amended to encompass works of visual art.
They were expanded to permit artists' ownership of copyright even after they sold the physical artwork, and again broadened to include "moral rights," preventing intentional alteration, damage and destruction of the physical work of art. Periodic judicial rulings also have widened the scope of copyright protections here and there.
All these changes and additions have given creators increased control over their artwork.
The Internet, on the other hand, makes that control more tenuous because of the computer-world ethos and technology that can place written and visual information wherever there is a computer, a modem and a telephone.
Traditional copyright law covers the areas of potential infringement, such as scanning (unless specifically permitted by the artist) and manipulating an image on the computer screen, perhaps creating a derivative work based on the original image.
The problems of enforcing copyright are related to the speed with which images may be scanned, altered and transmitted: First, one must track who is doing what with an artist's work; second, the process of seeking an injunction or trying a copyright infringement case in the courts is time-consuming and expensive.
The art world has no organization such as the music industry's American Society of Composers, Authors and Publishers (ASCAP) and Broadcast Music Inc. (BMI) to extract royalty payments whenever a composer's or musician's work is performed or broadcast.
Problem is epidemic
The laws are definitely on the side of artists, yet copyright infringement by high-tech means is reaching epidemic proportions.
Computer bulletin boards, which are filled with "shareware" that users can appropriate for their own uses (sending in a few dollars to whoever put the program on the board if they like it), breed the idea that people can take whatever they want.
Myrna Davis, who manages the Paul Davis Design Studio with her husband, Paul, in New York, said that she "met a young man who showed me his portfolio. The imagery was pretty good, since it belonged originally to a well-known commercial artist named Michael Schwab.
"This young man had been scanning in someone else's images without credit, changing things here and there, and he was stunned when I told him that he had violated the law, that he had violated someone's copyright. He just thought that once you put something in the computer, it's all yours."
Technological changes have been so rapid that, Whelan said, "the law strains to deal with them. Artists can do everything correctly and still get ripped off, because it's hard to find the infringers; it's hard to go after them. What's more, it's not profitable to try and track down every single infringer. I'm annoyed that there are people out there who would require me to be a watchdog."
Proponents of traditional copyright protections are met by advocates of free access to information, who believe that more information disseminated widely is a public good, and that it should be encouraged rather than impeded by antique legal concepts of limiting the use of intellectual property.
"The underlying theme is that copyright is rather ungenerous," Hamilton said. "Increasingly, the courts have been saying that copyright should not prohibit the creation of interesting, original work."
Creating something new out of copyrighted material may be accomplished when an artist's image is downloaded and appears on someone's computer screen. Basic keyboard commands enable all manner of changes, and the resultant work may bear close, moderate or minimal resemblance to the original artist's work.
Change is coming
Is this activity an infringement on an artist's copyright and moral rights? It depends on how "original" the derivative work may seem -- and whether one is an adherent of the Internet's ethos or of traditional artists' rights.
"The model that we have in copyright -- I have this property, and can control how this property is used for 75 years -- is going to change," said Ethan Katsh, professor of legal studies at the University of Massachusetts and author of "Law in a Digital World."
For instance, Katsh does not fault rap singers for "sampling," or borrowing, music from other singers' work as a violation of copyright, viewing the legally challenged practice as "fair use."
"I don't think sampling takes away from the market for the original works," he said.
Creating something does not mean controlling it absolutely, he added. The new technology culture "tends to see that what you created was really built on something else.
"The law should want to encourage people to take one thing and make something new out of it, and the question then becomes, when does something become new? That's a more interesting issue than should the original something be kept under tight controls."
Courts are increasingly of the same view, limiting the ability of copyright owners to seek injunctions against the unauthorized use of their work. As a result, attorneys involved in the arts are advocating solutions that don't contest infringement as much as ensure that artists will be paid for the use of their artwork, however it is used.
Don't fight it
"If you can't fight them -- and right now you can't -- join them," said Martin Bressler, vice president of the Visual Artists and Galleries Association in New York. "ASCAP didn't try to fight the technology of radio and records but worked with broadcasters to establish a royalty system, setting up licensing arrangements with the distributors."
France and Germany have adopted this approach, enacting a royalty on blank film and video cassettes in 1985 as part of their respective copyright laws as a means of reimbursing filmmakers for lost income from presumed taping.
Some attorneys in this country have suggested that instituting a royalty on blank computer disks is the way of the future.
Another way to ensure that copyright holders are paid for the use of their work, Marcy Hamilton noted, would be by developing a system of itemizing everything that is downloaded into one's computer -- similar to a detailed telephone bill, where every outgoing call is noted -- and charging the individual at generally established rates.
Under U.S. copyright law, artists and other copyright owners may seek not to prohibit use of their work but to receive remuneration through compulsory licensing, which requires those who make certain uses of copyrighted material to pay royalties to the copyright owners.
The basis of compulsory licensing is the belief that the public's interest in free access to copyrighted material outweighs the copyright owner's rights to control that access. In the area of the new computer technology, that appears to be the growing sentiment of the courts.
Paying for specific usage
On a more individual level, artists may negotiate contracts that "specify the area of use," according to Joshua Kaufman, a lawyer in Washington who represents many artists in copyright disputes.
He adds that a clause should be inserted, stating that all rights not assigned belong to the artist. Separate fees may be paid if an artist's work is put online or on just one compact disk, and two fees if used in both ways.
"If an artist gives someone the right to reproduce a painting in a magazine or brochure," he said, "and that person then wants to use the art electronically, that person should have to get new permission from the artist, which would probably involve an additional payment."
Kaufman added that another method by which artists could protect themselves from unauthorized use of their work is by ensuring that anyone who downloads it receives a low-resolution image that can only be viewed for content and is not otherwise marketable.
"The low-resolution precludes the ability to reuse it," he said, "and anyone who wants to use the image would have to make arrangements with the artist to get the original."
However, many other arts attorneys claim that such an idea, while technically feasible, is also contrary to the state of the art -- most artists want their work to look as sharp as possible as a way of attracting potential customers, worrying about copyright infringement somewhat later.
On the other hand
Clearly, the new computer-based technology offers exciting opportunities for everyone.
Artists may be able to use the Internet to communicate and show their work to other artists, collectors, critics, dealers and museum officials instantaneously. New ideas for projects, collaborations among artists living quite far apart, and sales to collectors may be the result.
The new technology, however, also offers new opportunities for those people who are ready to use a freedom-of-access rationale to excuse a case of traditional copyright infringement when stealing from artists.
Looking for art on the Internet? Here are a few addresses:
Art Now Gallery Guide Online: http: //www.gallery-guide.com/content/current/index.htm
Art on the Net: http: //www.art.net/
ArtServe: http: //www.rubens.anu.edu.au/
ArtsWire: http: //www.artswire.org/Artswire/www/awfront.html
Chicago Artists' Coalition Online: http: //www.caconline.org/home.html
The Art Bin: http: //www4.torget.se/artbin/aaehome.html
The electronic salon: http: //www.canuck.com/Esalon/
fineArt forum online: http: //www.msstate.edu/Fineart_Online/home.html
The Green Cart Magazine: http: //www.greencart.com/visual-art/visual-ar t.html
The Sleeping Dog: http: //cuboulder.colorado.edu/FineArt/FineArts.html
Pub Date: 8/25/96