There’s a reason we need to sit up and pay close attention to copyright infringement and any such related issues at this point in time. And it is not because Courtney Love was displeased about the similarities between Gen-Z pop sensation Olivia Rodrigo’s album cover visuals and the 1994 album artwork for Live Through This by Love’s band Hole.
Neither is it because the likes of Christie’s Paris sold the Hekking Mona Lisa, a famous early 17th century replica of Leonardo da Vinci’s iconic painting, advocated ardently by its owner as an original, for US$3.44 million.
The clear and pressing reason is the digital art market. Yet such issues have plagued the art world for decades. Legally, copyright infringement occurs when a copyrighted work is reproduced, distributed, performed, publicly displayed, or made into a derivative work without the permission of the copyright owner.
Most recently, in July, the famed Uffizi Gallery in Florence, Italy, made headlines for suing controversial pornography website, Pornhub, for use of the museums’ images and content without permission in a new online initiative exploring risqué scenes in classical paintings. The museum confirmed with Hyperallergic that it was suing the company for copyright infringement.
More famously, in 2013, the Second Circuit court in the US contentiously found that Richard Prince had not infringed on photographer Patrick Cariou’s photos by using altered versions in Prince’s 2008 series “Canal Zone”.
The case, originally brought by Cariou against Prince, Gagosian Gallery, Lawrence Gagosian and catalogue publisher Rizzoli, was eventually settled out of court. The court’s decision was based on “whether a reasonable observer would find Prince’s works to have been transformative, and thus protected under fair use law.”
Fair use is part of the US law permitting “limited use of copyrighted material without having to first acquire permission from the copyright holder”. It allows room to defend copyright infringement claims in the name of public interest in wider distribution and use of creative works.
Fast-forward to 2021 and Prince is minting NFTs of his 2014 “New Portraits” series, which involved the artist printing copies of other people’s Instagram posts as his own work.
Copyright infringement is the reason why Intellectual Property (IP) rights are crucial. IP rights can be typically divided into two areas. Firstly, copyrights and rights related to copyright for creators of literary, artistic works and their ilk. Secondly, industrial property which can be further categorised into two separate areas—the protection of distinctive signs like trademarks, as well as types of industrial property protected primarily to stimulate innovation, design and the creation of technology such as inventions, industrial designs and trade secrets.
Trademarks are important to note even in the art world. Just this year, the European Union’s intellectual property office stripped Banksy of the trademarks of his most famous images such as Radar Rat (2008) and Girl with an Umbrella (2008) and Laugh Now But One Day We’ll Be In Charge (2006).
The latest ruling in March was due to lack of evidence the artist was “producing, selling, or providing any goods or services when he successfully applied for the E.U. trademark in 2018”, concluding that he was acting in “bad faith”, and “only pretending to want to trade in his creations”.
Subsequently, he was able to successfully trademark at least two of his famous creations including Girl with Balloon in Australia.
In spite of these efforts, an artist known as Pest Supply created Banksy-esque digital works selling for over US$1 million. The works were “denied access to OpenSea for perceived copyright infringement” but managed to sell on another online platform, inviting furor from online netizens regarding gatekeeping in a fledgling industry largely appealing for its pre-legal traits.
The pre-legal nature of NFT is concerning because it makes the field prime for copyright infringement. While NFTs were originally created by technologist Anil Dash and artist Kevin McCoy as a way of using blockchain to provide artists a means to support and protect their digital creations, it has become something else entirely thanks to tech world and art market opportunism. Remember the Singapore-based Global Art Museum?
Equally concerning is the fact that copyright and IP laws differ from country to country. Case in point, Banksy’s aforementioned trademarks applications in Europe and Australia using the same legal maneuver but inciting varying outcomes. What does this mean in the case of NFTs which are proliferating in various parts of the world?
It does seem that the traditional art world’s copyright concerns, while largely contentious, pale in comparison to the kind of legal ramifications posed by the growing digital art market. So, the question remains, since the storied evolution of digital art is clearly meeting the moment, how do we protect the original work of digital artists?
Perhaps landmark rulings from cases such as Jay-Z attempting to stop his former Roc-A-Fella Records co-founder Damon Dash selling the rapper’s debut album Reasonable Doubt as an NFT will set precedent. Fundamentally, the creators with copyright are the ones who can turn the tide, as in the case of Napster, the free music sharing platform of the early 2000s, shut down by backlash from the music’s copyright holders.