Blog / 2013 / One More Reason Why Artists Need to Learn About Copyright
October 3, 2013
Last summer, I was offered a public art project and, through a variety of circumstances, it has turned out that I am being asked to paint a mural containing trademarked material.
Anyone who follows this blog even a little knows how I feel about intellectual property law and the chilling effects that it has on creativity. I’m a very vocal free culture activist—and I’m proud to say that I have turned a number of my fellow artists into copyright questioners too! So since I’ve done a good deal of thinking on the subject, the use of other people’s intellectual property doesn't completely petrify me.
Copyright and its cousins don’t stop me from using trademarked material in my work, as for example in the above piece, with the hat.
And they don’t keep me from referencing work still protected by copyright, as in this painting...
...and possibly this painting as well.
But when I do poke at IP law with my art, I do it in a way that I feel comfortable doing it. And butting up against trademark law with a public artwork does not feel comfortable to me, because, as a mural novice, there are more factors at play than I understand and I am not willing to place myself at the mercy of those unknowns.
So I explained to a number of the parties involved in the public art project that I wouldn’t be making the mural until someone else took full legal and financial responsibility for the use of the trademarked material. And the basic gist of the response that I got again and again was that this proposed use of a company’s intellectual property was “no big deal.” I didn’t agree, but, if that was the answer, then it followed that someone else should be happy to sign a contract indicating that they would take full responsibility.
Only, no one else was willing to do so.
Still, it was made clear to me that these other parties didn’t think I should be alarmed by their logical disconnect. In fact, I was given the name of an IP lawyer in precisely the same way people give you the name of a therapist when they think you're in need of some emotional perspective.
When I called the lawyer, he was generous enough to answer all my questions, and his refrain was the same: this particular use of trademarked material was “no big deal.” What’s more, the lawyer told me that he too champions the free culture movement and that he encourages artists to push the boundaries of IP law. He even said something about how it’s important for the movement that artists go far enough to get thrown into jail. To which I replied that there were plenty of other ways to fight a legal system that’s deeply flawed, and those other ways don’t involve artists becoming incarcerated just to make a point.
And that’s when it hit me. All the parties I spoke with about this emphasized how much they care about artists, right? But that didn’t mean that any of them were willing to throw themselves to the trademark wolves in my place. And why would they be? Copyright and its cousins are complicated, and they can leave you sued to pieces even if you didn't actually do anything wrong.
All of which is to say: artists, BEWARE.
Learn about intellectual property law. If you're open to questioning it, start with this book by the founder of Creative Commons or with this documentary which deconstructs some of the more obvious issues with our system. And even if you buy into the copyright paradigm of creativity, you should still take the time to understand the legal aspects more fully. Learn about IP so that you can advocate for yourself, because, where this convoluted and problematic set of laws are concerned, no one else will advocate for you—not even sworn arts supporters.