This Post Could Get Me Into Trouble
To run a non-profit website you need content, and that sometimes means pulling shots from the internet. Many of the photos and all of the music I use are mine, but once in a while I get a polite note from someone who’s upset that I used their shot, asking me to remove it, which I always do. Very rarely I get a Cease & Desist from a stroppy lawyer seeking to monetise a shot, but most people are reasonable because the internet has thrown open a lot of grey areas on this. Of course a professional photographer needs to protect work, but others can overreact.
I once wrote a book called ‘The Bureau of Lost Souls’. The designer, Martin Butterworth, rendered an image from the book on its cover, where a line of faceless office workers endlessly climbed a building to nowhere.
My publisher was instantly contacted by the estate of MC Escher, who demanded a lot of money for infringement of copyright. To show you what they felt Martin had infringed, I must again infringe the copyright for a moment. I’ll take it down as soon as their lawyers come roaring back at me. If you’re reading this, lawyers, show some sense – I’m making a point.
My publishers paid up and changed the book’s cover, despite the fact that Martin had not copied Escher’s style and you can’t copyright an idea rendered as a drawing. Escher’s estate was famously aggressive about copyright and probably still are. Presumably they struck a deal over the game ‘Monument Valley’, which is entirely built on Escher principals.
Back in the 1980s I was hired to help write a government white paper on copyright. As a member of FACT, ALCS and various copyright agencies, I was well-qualified to do this. Britain had a problem; its MPs did not understand that copyright was an unrealised cash-cow. America had been the first country to properly understand and exploit copyright and licensing. Disney licensed products from its films at a time when no-one else did. After the licensing of ‘Star Wars’ everyone started doing it, and now many films make most of their money from spin-offs. A friend of mine had a job which consisted of travelling around the world and spotting badly drawn pictures of Warner Bros. cartoon characters outside shops, then taking the owners to court. It might be hard to get excited about knock-off Daffy Duck duvet covers, but there’s big money in it.
One of the earliest copyright wheezes was to give a writer a university chair and encourage them to bequeath manuscripts, thus granting copyright to the university. The copyright of ‘Peter Pan’ was presented to the Great Ormond Street Children’s Hospital, and remains there. Agatha Christie handed the copyright of ‘The Mousetrap’ to her grandson as a birthday present. For many years no more than one production could be licensed, but now there are productions running all over the world.
So the UK wanted to get in on the act, but found that its MPs were not techno-literate. The funny thing was, if you asked half a dozen MPs to schedule a meeting at a defunct Clydeside shipyard to discuss restarting the shipping industry they would have turned up, but if you tried to get the same six into a room to work out how many millions there were to be made from copyright, they wouldn’t appear.
We put together the white paper. It didn’t change much. One of the problems was that the internet had swept away so many barriers that it was impossible and illogical to put them back up. Copyright in art is convoluted and much ignored. Maurice Sendak’s ‘Micky In The Night Kitchen’ is a direct homage to Windsor McKay’s ‘Little Nemo’, a fact which went unacknowledged for a very long time (left; Mickey, right; Nemo).
Could Sendak have used Winnie the Pooh as his template? No, because the Pooh style belonged to EH Shepard. Could he have used Peter Pan? Probably, because there have been many styles of the character from different artists. ‘Homage’ covers a multitude of sins. I homaged (and openly acknowledged) a debt to Edmund Crispin’s ‘The Moving Toyshop’ in ‘The Victoria Vanishes’, although I followed a theme and nothing more.
And what about research? Chances are you’ll follow someone else’s historical research as it’s very hard to create your own just to add a small fact to your work. Malcolm Gladwell decried someone turning one of his essays into fiction, but acknowledged that the two states, factual reportage (his) and fiction (the writer who used his essay) were fundamentally different.
Finally, there’s the most obvious point; does the new work hurt the original work? Does it demean, detract from or in any other way damage the original artist or writer? Does it enhance their work, or give them publicity? That’s where some common sense should kick in – and does so long as lawyers aren’t involved.