Re: Fine Art Reproductions

On 4/9/99, Amalyah Keshet <akeshet[_at_]netvision.net.il> wrote:
>
> On 1999-04-05, Robert Baron <rabaron[_at_]pipeline.com> wrote:
> >
> > Whereas it is possible to reproduce a "text" exactly, it is
> > impossible to create an exact simulacrum of a visual work of art.
> > There will always be a difference between the original and the
> > copy. The relevant question is this: Are these differences
> > purposeful and representative of some original view of the copyist,
> > or are they due to inherent limitations, faults and/or imperfections
> > in the reproductive process? If these differences are due the
> > former, then, I'd say that the copy is copyrightable, if the latter,
> > then there is no originality.
>
> Photographing works of art (something I oversee in the course of my
> work) is unimaginably difficult, frustrating, and "sweat-of-the-brow"
> describes it perfectly. It it highly intuitive and involves a lot of
> very creative input, creative decisions and improvisations -- in short
> everyting that would *not* describe unoriginal copying. This is
> something I've been thinking about as I've followed the Bridgeman vs.
> Corel case -- and while I've been working in the studio, sweating out
> yet another shot.
>
> To be frank, our intention (mine and the photographer's) when
> photographing a work of art is *not* to reproduce it as accurately as
> possible. If we wanted to do that, we'd be working in oil on canvas,
> pastel on paper, or another medium. What we are trying to create, and
> I am choosing my words deliberately, is an original 4x5 inch color
> transparency, a slice of celluloid which is really a new work, and
> which functions as a tool. It cannot reproduce the work of art we're
> photographing; it can only give an idea of it, represent it. We aren't
> after accuracy in the sense of copying, reproducing, substitution or
> forgery, but we try to capture the elements which will successfully
> translate into a fair representation of the work when printed, in
> greatly reduced size, on the printed page.
>
> One of the great frustrations in photographing works of art is the
> impossibility (perhaps, in the end, an advantage) of achieving
> "accuracy." There are pigments which simply defy capture on emulsion
> and translation via developing chemicals. (I have a private, rather
> cynical theory regarding Monet's blues.) Yes, we want to represent
> the yellows in a van Gogh -- but good luck. Having recently spent
> days (and three photographers) trying to create a satisfactory
> transparency of a Duchamp collage incorporating a piece of silver
> foil (sheer hell, if you want to know), I can only laugh at the
> idea that our intent is to "accurately reproduce" the work. These
> inherent limitations, as Robert Baron call them, are exactly what
> make it neccessary for us to create something new, an original effort,
> that will function in an entirely different way from the work of art.
>
> In short, while on the surface the Bridgeman vs. Corel decision sounds
> logical, I can't help feeling that the court did not delve into nor
> really understand the intent and process of photographing
> two-dimensional works of art, nor the originality of the resulting
> photographs.

Viewed from a precisionist point of view Amalyah's presentation of the reproductive photograph as a "derivative" work makes a lot of sense, since it is quite obvious that a photographic copy of a visual work -- for many works, anyway -- cannot ever precisely "reproduce" its model. Almost everyone admits, however, that there are degrees of difference between an original and a reproduction, degrees that vary on a sliding scale on which, say, architecture and sculpture, representing one extreme, are obviously not reproduceable, but where copies of woodcuts and some graphic arts may yield reproductions with nary a significant aesthetic difference between photo and original. If I understand Amalyah correctly, she implies that no photographic reproduction can rise to the level of an exact simulacrum of a singular original since the inherent limitations of the photographic process forces the photographer-technician to produce a "derivative" version of the original rather than a simulacrum of it -- and derivative versions, by virtue of the decisions needed to create them, embody creative content. (What I have called "working with technical limitations" Amalyah considers to be a process of selection that is intended to produce a given result. To me, this is the same phenomena viewed from different angles. Between the two, I prefer the way she frames this the description of the process.)

In her argument Amalyah adopts very high standards. To be fair, she acknowledges that reproductions must vary to allow for the use to which the resulting photograph is to be put. But, in applying such high standards, even producing an exact reproduction of a simple woodcut, can be turned into an exercise of interminable frustration. One must wonder whether the process of making a functional version of an illustration (the specialized 4x5 transparency she cites) is "creative" in the sense required to warrant copyright, or is it just a necessary step in the process of making the translation to a new medium -- as Robert Panzer recently suggested.

Literary texts can be exactly reproduced because there is no attempt to recreate the look of the original. What is reproduced in literary editions are the selected symbols upon which we have agreed are able to transmit the creative essence of the work. We needn't reproduce the optional printer's marks, the margins, typography, of an edition, only the letters, words, paragraphs, chapters. By convention, we define the symbology of language as capable of conveying creative content of literary works. However, every book designer will tell you that the setting of a text: the font, the margins, the paper and so on, has a lot to do with how the text is understood. Even so, we accept the typescript alone as the core copyrightable entity. In other words in literature we distinguish between form and content when it comes to copyright.

In visual works form and content are wedded into a single expression. So, for visual works, we must ask what constitutes the communicative essence of a work? Is the copyrightable essence the work as a whole in its fixed singularity. Or is there a symbolic core or some other content that serves to epitomize an artist's statement, a core that when reproduced photographically serves as a valid un-original surrogate (if an exact simulacrum is, by definition, impossible) of the work being reproduced? Must we agree with Amalyah that the unreproduceable singularity and uniqueness of a work of art is such as to make it impossible to reproduce without the addition of a new creative dimension? Or, must we make a judgement call -- one that allows us to say that for some purposes certain reproductions are primarily creative in their derivation, while other images, for purposes of copyright (reserving the right to employ different criteria to judge aesthetics), constitute valid copies essentially equivalent to the original as far as originality is concerned.

Obeying Amalyah's logic would mean that singular works of art bear unique creative content, and cannot be copied in such a way so that the copyrightable content is reproduced unaltered in the copy. Such a view would imply that once the period of copyright has terminated, control of first-generation reproductions of the original would vest entirely in the hands of the owner of the object (as she implies elsewhere), which, save for those photographs and publications of the object that eventually enter the public domain, remain in perpetual control of the owner. In short, if we follow Amalyah, the rights to the object and to all first generation copies of the object will forever remain in private hands -- good news for museums and collectors, since, in effect, it doubles the period of time a work through its high-quality photographs can be withheld from the public. Legal public domain status for these objects would really be only a transfer of exclusive rights from the maker to the owner -- from one private domain to another. I do not think that this is the intent of copyright laws.

Robert A. Baron
rabaron[_at_]pipeline.com Received on Tue Apr 13 1999 - 13:05:46 GMT