Copyright

Among the pleasures of reading and research I must cite an unlikely bit of apparatus: the footnote and bibliography. Most of us who’ve progressed through tertiary education have learned to despise them along the way. The sheer mechanical difficulty of managing citations, tracking page numbers, gathering correct bibliographic information and (adding insult to injury) formatting everything with the proper seasoning of punctuation, abbreviation, and sequencing can be maddening. Added to that, one must know when to cite a work, decide what is “common knowledge” that can be left uncited, and how to find the balance among quotation, paraphrase, and inadvertent plagiarism. Those are the burdens of the serious, academic writer.For the reader, though, the scholarly apparatus of footnotes and bibliographies are the Easter eggs of investigation. A good book or article not only informs and sometimes inspires, but it leaves in its trail hints of more pleasures. And so it was in my reading of David Bruno’s work on the antiquity of the Dreaming. I have yet to completely mine the extensive bibliography on the book’s final pages, but it has led me to an article in a wonderful collection of essays entitled Prehistory to Politics: John Mulvaney, the humanities, and the public intellectual (Melbourne University Press, 1997).

The essay which drew me to this work was by Howard Morphy, entitled “Empiricism to Metaphysics: in defence of the concept of the Dreamtime.” I’ll probably take up the real subject matter of this essay at another time, but for now I just want to steal an observation out of context to set up my own evening’s essay. I quote:

“[A]nthropology has been a process of accumulating descriptions that are ever-fuller and more accurate recordings of observed “reality.” Realism in this sense is the degree to which descriptions by different observers agree with each other, yet it must also take into account the possibility of observer bias at all stages.” (p. 168)
I think that good art criticism can be characterized in a similar manner, in that it includes serious description of the object under study first of all, followed by interpretation–which of course is where the potential for observer bias comes strongly into play. Museums and galleries have always afforded the opportunity for multiple observers to share the experience of the art object (a luxury almost always denied to field anthropologists). Photographic or mechanical reproduction enhances this shared experience, and the digital revolution has brought new possibilities into being.

It has also vastly increased the danger of abuse of the privilege of reproduction.

In Western society, the concept of copyright emerged to safeguard against such abuse. The creator is typically granted control over the reproduction of his creation for a limited period of time so that profit, however that is defined, may accrue to him alone. After a given period of time, the work passes into the public domain, so that others may in turn benefit from the creativity of the artist or author. In the meantime, however, the concept of “fair use” affords limited rights of reproduction especially for scholarly or educational use of copyrighted material.

(I should point out that I am speaking of the law as it’s traditionally been promulgated in the United States, and also that I am presenting a layman’s understanding of all these concepts. If there are any lawyers in my virtual audience they are most likely either rolling heir eyes or rolling on the floor laughing by this point. However, I am certain that my use of the brief quotation from Morphy’s essay above is indeed fair use, and I owe him nothing for the right to use it here other than proper acknowledgment.)

For purposes of art criticism, with the goal of advancing collective understanding and appreciation of a work, the ability to reproduce the work in question is a significant advantage, and yet especially with Aboriginal art, it seems almost impossible to do so.

First of all, there is an astonishing lack of clarity as to who actually controls the rights of reproduction. The simple answer would be the artist, but even that proposition is only deceptively simple if the artist is unreachable, unconcerned with Western legalisms, or unaware of them. For many Australian artists, Vi$copy serves as a surrogate or manager in this respect. But even there, confusion is the norm. Allow me to illustrate with a personal history.

Some time ago, I was considering publishing an article dealing with two Aboriginal artists, both of whom came from urban environments and who had studied at Australian universities before or during their careers as makers of artworks. One was represented by Vi$copy; the other was not. I wanted to include reproductions of a total of three works by the two men with the manuscript for eventual publication. The artists were Australian, the author was American, and the intended venue of publication was British.

I wrote to Vi$copy in Australia, who informed me that I would most certainly have to pay for the right to reproduce the work, even though it was in a scholarly journal and would bring me no monetary profit. (I’m not sure it would have brought much profit in the coin of prestige either, but I’ll put that consideration aside.) However, since the journal I was submitting the article to was in England, I was directed to the British office of Vi$copy. They informed me that if I did not intend to profit, I would not be charged, although I would need to obtain approval from the Australian holder of the copyright. Since the artist in question was deceased, and copyright issues went through Vi$copy, who referred me back to the British office, I was reminded of Ionesco’s dictum that the more you caress a circle, the more vicious it becomes.

The second artist was still living, at least, but I didn’t know how to contact him to request permission. So I wrote to the gallery that usually represented him to ask for contact details. The gallery owner replied that he (the gallery owner) could grant permission for the fee of $100. However, the gallery would be willing to waive the fee if I allowed them to review and approve the article in advance. This proposition struck me as fairly reprehensible on a couple of counts. First, I wasn’t sure it was at all appropriate for a gallery owner (who most certainly had profit in mind when it came to “his” artists, to be controlling the copyright, and I had and was offered no assurance that this was in any sense legitimate. Second, there was a whiff of the censor’s pencil in the reply. I could fork out the money, sure. But barring that, what would happen to my interpretations if the gallery owner found them unsympathetic? The third way, of course, was simply to redouble my descriptive efforts and forgo the reproductions altogether.

In the end, I was spared all difficult decisions by the editorial staff of the journal, who acknowledged receipt of the manuscript and subsequently refused to reply to any further communications. I have, in therapeutic parlance, moved on.

There is of course, another side to this whole issue, and that is one that deals with the artists themselves. Here my ignorance can make me look by comparison an expert in copyright law. I’m sure that any painting I might want to reproduce is itself a public design and that the dangers of violating sacred prohibitions that were vital issues two or three decades ago are no longer in play. But there is the question of reciprocity as distinct from the matter of law. 

I would like to believe that my motives are pure and in the artists’ best interest. In my early blog entry (“Author’s Note,” September 18, 2005), I went on record as agreeing with Nicholas Rothwell’s observation that the paucity of critical writing on Aboriginal art is harmful to the “industry,” as Rothwell described it. And I would like to believe that by writing about the art, and by judiciously reproducing selected pieces, I am acting reciprocally by helping to enhance the reputation of the artist and perhaps the marketability of his work. At the very least, I hope I would be making a good faith effort to increase understanding and create consensus in the community. But I’m not certain that such action would be truly fair, at least in all cases.

So I am opting, for the moment, to rely on published sources. To look for images available on respectable and persistent web sites, and to cite printed publications where I know they exist. I would like to find a more satisfying solution, one that both respects the rights of producers and accommodates the needs of respectful writers and their readers. Earlier tonight I was looking at the website of the Buku-Larrnggay Mulka Centre at Yirrkala and found the following statement from Djambawa Marawili:

“This is letting you know so you will learn from us. Learn from these words like we have learnt from you. Your knowledge, your education, your background, we are using it. Some of the law and some of the culture of yours. OK and in the same way you must learn….”
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