A Few Observations on Copyright and Art

Back in 2012, I was talking with an acquaintance, who happens to be a copyright scholar, about a cease and desist letter that an artist had received from a publisher. The publisher objected to the artist’s display and sale of works that collaged cutouts from a comic book with new material painted by the artist. I worried that if you took the copyright owner’s claims seriously, any collage incorporating copyrighted material would be prima facie copyright infringement, even a collage made of pictures cut from a copy of the New York Times. My acquaintance did not even blink at this observation, but seemed to believe it was a perfectly reasonable result. My jaw slackened. How could it be that whenever people include a single shred of an authorized copy in a unique collage they subject themselves to claims for copyright infringement that could result in $150,000 in statutory damages and millions of dollars in plaintiff’s attorney’s fees, not to mention their own legal defense costs? Claims that, even if not meritorious, may be difficult or impossible to dispose of without a full trial?Despite the possibility of such nightmare scenarios, most attorneys I talk with seem to believe that copyright works just as it should in the context of the Art World. I happen to disagree. In several important ways, copyright fails to function properly when art is involved, both in terms of basic fairness and intended economic incentives. I hope the following observations will bring those failures to light and suggest how courts and lawyers could tweak their analyses, within the established framework of copyright, to reach more reasonable results