Just when you thought the ramble was done, here we are again. Beyond the functional knowledge that we covered in the previous column, there is a roaring debate going on in artistic, intellectual, and legal circles about what defines the idea of intellectual property and copyright. There is a large contingent of artists and philosophers who demand the freedom of information, knowledge, and art; freedom to be created, freedom to be displayed, freedom to be copied, derived, or adapted.

For several decades now, hip-hop and rap artists have utilized sampling techniques to put many of the most popular hooks into their songs. Anchored with some classic piece of R&B or funk, sampling gave songs instant identity, sometimes ironic context or commentary, sometimes simple adornment. Rather than viewing it as a rip off, these artists are reshaping, reutilizing, and recasting these pieces in new ways. It would be ironic to see the artists from Death Row Records hangin' with the founding fathers, but the fact of the matter is, copyright law was, first and foremost, designed to expire.

The whole concept of intellectual property is relatively contemporary. The first patent law was enacted in 1623. The precursor to modern copyright, the Statute of Anne, was conceived in England in 1710. These early attempts at defining intellectual property were fairly narrow, addressing only certain types of published information, primarily military or scientific. Broader interpretations have only come into existence within the last 50 years. The most recent interpretation from the US Supreme Court, Eldred vs. Ashcroft, upheld the “Sonny Bono Copyright Extension Act.” Under the act many copyrights held by major media corporations will now extend for 95 years, with individual copyrights extending for the life of the author/creator plus 70 years. The first US copyright law, enacted in 1790, gave creators sole rights to their work for 14 years, with the possibility to extend for an additional 14. Why, you say, would the founding fathers have limited this ownership? Because they saw the value of innovation and creation based on derivation: “To promote the Progress of Science and the useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”

We touched on this briefly in part 1. There is no question that the framers of the copyright laws saw the value in innovation as well as creation. In their view, ideas were seeds, important in and of themselves, but meant ultimately to grow into greater and perhaps even unrecognizable things. With a potential period of 28 years to enjoy a monopoly on their work and its benefits, it was judged that authors/creators would have ample time to build on the work, profit from it, and disseminate it as they wished. Many constitutional scholars argue that the benefit to society is then extended by making the work available to the public domain, encouraging further development. In refusing to uphold Eldred v. Ashcroft, the Supreme Court has apparently expressed diagreement with this, reasoning that control of the work supercedes this public good. It is intriguing and somewhat unsettling to survey the lobbying efforts on the part of companies like Disney, and organizations like the RIAA in supporting the Bono act. As conceived, the act would have defined the period of copyright control as “forever minus one day,” effectively ending the very concept of public domain.

How to interpret this realistically is a bit of a guessing game. To draw an example, at the moment we are designing multimedia and projection for a fabulous new piece by the Pat Graney Dance Company entitled The Vivian Girls. The piece is based on the work of Henry Darger, a highly eccentric artist who remained completely undiscovered in his lifetime. Darger's work comprised literally hundreds of watercolor paintings, with a companion 15,000-page novel describing an imagined land with heroes known as the Vivian Girls. Darger's primary method was to trace figures and faces from the catalogs and advertising of his era (the 1930s and 40s). We in turn are using the Darger pieces for projected backgrounds as well as a launching pad for exploring palette and composition. Though we are working with the full cooperation and permission of the Darger estate, with the enactment of the Bono act it is theoretically possible that the “owners” of the trademarked or copyrighted images that Darger used could seek damages or restitution. Possible, although not probable. There is a great deal of circumstance and reasoning that plants our project square in the realm of fair use. However, a company that had the motivation and the funding for legal action could effectively bring our effort to a halt, purely because they can outspend the dance company in the legal process of discovering who is right. Designed largely to ensure the stability of big corporate revenue streams, the Sonny Bono act has vastly shrunk the available pool of public domain and what was about to become public domain. But, as we can see, there is a lot of contention and struggle in our culture with the very validity of the idea.

Which brings us to our next and final topic: How do designers working in the industry protect themselves from such litigation, and how can they ensure producers the same peace of mind? Our projection design contracts contain language which stipulates that any materials that we bring to the design are either used with appropriate permissions and payments, or are entirely original creations. We also have language that stipulates that any materials provided by the producers, or any of their assignees, enjoys the same legal status, and that we as designers are not liable if this is not the case. The specific wording should be looked at on a project-by-project basis, and certainly the opinion of knowledgeable attorneys or agents can be a great deal of help. Failing that, there are some fantastic written resources out there for tackling these contractual issues. We highly recommend the Graphic Artists Guild's Handbook of Pricing and Ethical Guidelines. A trove of great information and specific boilerplate contract language can be found between the covers, and we derived a good deal of valuable intellectual property clauses from it. Another great book for design contract language information is James Moody's The Business of Theatrical Design. We've found Caryn R. Leland's Licensing Art & Design book to be another useful resource for dealing with licensing and copyright issues. It has sample licensing agreements; it also sheds light on some of the industry standards for royalty payments and artist restitution.

When David Johnson asked that we tackle this topic, we knew that it would be complex. Little did we realize that some of the biggest legal copyright battles yet fought would occur while we covered it. After beginning the research and the writing, it was clear to us that this topic is wildly divergent in belief and practice. There is literally no end to the available information or opinions regarding it. So get out there and dig around a bit to get the MUCH bigger story. As artists we all need to be aware of what the rules are, how to operate within them, and what their context is. It is also incumbent on us as artists to challenge these rules and this thinking in order to keep our process vigorous and healthy.