Re: Fine Art Reproductions

On 4/8/99, John Noble <jnoble[_at_]dgsys.com> wrote:
>
> On 4/7/99, Tyler Ochoa <tochoa[_at_]law.whittier.edu> wrote:
> >
> > I think you misunderstood Robert Baron's previous post. No one (and
> > certainly not Robert) is claiming that a photographer just "points
> > and shoots." No one is denying that it takes skill and judgment to
> > reproduce a painting in a photograph; and no one is denying that the
> > choices made in doing so are "purposeful."
> >
> > The question is, for WHAT purpose are these choices being made? What
> > Robert said was that the choices made by the photographer "are not
> > conscious or purposeful efforts TO REINTERPRET AND TO ADD SOMETHING
> > NEW to the objects before the camera." He didn't say they weren't
> > purposeful choices; he said that the purpose behind them was to
> > reproduce the original as faithfully as possible, rather than to
> > transform the original into a different work.
>
> It's possible that you are right, but this drives copyrightability
> analysis into unexplored territory. Can the originality requirement
> turn on the subjective intention of the author, ie. whether the
> difference from the original is purposeful or inadvertant; or a
> subjective assessment of the result, ie whether the difference is
> meaningful or meaningless, feature or flaw? Does this mean that my own
> badly framed, badly lit, poorly focused Kodak instamatic shot of the
> Mona Lisa is not protectible only because I _wanted_ a faithful
> reproduction?

John Noble's point is well taken, and only goes to show how flawed must be laws (or our understanding of them) that try to codify results that are open to interpretation. When studying the arts (literary and visual) we learn not to take the maker's stated intent as a definitive explanation of the results achieved. This is known as the "intentional fallacy," and one can argue that it applies to individual creators as well as to corporate creators. But because we have learned to bear a skeptical distrust for statements of intent, it does not necessarily follow that such statements misrepresent the results achieved.

When Bridgeman argues that their works should be protected because of the skill and labor they bring to their work to make exact copies, and when it looks to our eyes that this statement is substantially correct, I believe that we are right to take them at their word. From our perspective -- here and now -- it does not seem as if their copies of public domain works (or those fragments of their images that are the subject of the suit) bear sufficient originality to pass the test of copyrightability. What future observers may see in them may be none of our business.

Just because, at the bottom line, all copies of visual works, must reveal degrees of subjectivity, it does not mean that the law must acknowledge every subjective nuance. There are times when the stated intent matches up sufficiently well to the results achieved to allow us to accept the statement of creators and copyists as accurate.

As for John Noble's desired faithful reproduction of the Mona Lisa -- sometimes (quite frequently, actually) one does not achieve one's stated goals -- and everyone (with the possible exception of the copyist) knows it. It is not the statement of intent that determines the degree or lack of originality, but the results achieved. Therefore, I would argue that despite protestations to the contrary our hypothetical "badly framed, badly lit, poorly focused Kodak instamatic shot of the Mona Lisa would, indeed, be protectable -- arguments from its author notwithstanding.

Conversely, I suppose, a copyist can argue that his faithful reproductions are, in fact, original interpretations, exhibiting features or elements of the subject not immediately apparent or perhaps more suitable for the modern temperament -- even though, to everyone else, the images seem rather objectively reproduced.

In the end, knowledge of the intentional fallacy proves its worth. You needn't believe a creator's statement about his intentions, but sometimes it just can't be discounted.

Robert Baron
rabaron[_at_]pipeline.com

P.S. I seem to be collecting the kind of _in situ_ images of the Mona Lisa that John Noble describes, several of which may be viewed at http://www.pipeline.com/~rabaron/MONA09.htm. Readers are invited to send me their "subjective original" images of Mona (with appropriate permissions) for possible inclusion in the above-cited study. Received on Fri Apr 09 1999 - 17:01:08 GMT