When does a copyright go too far? | CNN (2024)

Editor’s Note: Robert Shore is editor of Elephant Magazine, a visual arts quarterly. This is an edited excerpt from his book “Beg, Steal and Borrow: Artist’s Against Originality,” published by Laurence King.

CNN —

If you want to riff on the “Mona Lisa,” go ahead. Scratch a biro mustache on her. Give her a full beard if you like.

Don’t go drawing facial hair directly on the original, of course; that’s the physical property of the Louvre, and the museum’s conservators are likely to get very angry with you. But otherwise feel free to do your best or worst with Leonardo’s portrait of Lady Lisa.

You can copy it or adapt it; you can even rephotograph it and Photoshop your signature on to it if you want. The original is out of copyright, and has therefore become part of the global creative commons.

If you use a photograph of the “Mona Lisa” as a basis for your art experiments and then try to sell the results, though, be aware that that photographic image may be separately copyrighted material. (Photographers have rights, too.) And it should go without saying that if you make an exact oil-on-board copy and try to pass it off as Leonardo’s original, you may be charged with forgery. But otherwise knock yourself out. You are (almost, within carefully circ*mscribed limits) absolutely free.

"She's a Model and She's Looking Good" (2014) by Jonathan Lewis

If you want to do something with Pablo Picasso’s “Les Demoiselles d’Avignon,” on the other hand, you are much less free. Newsweek hailed it as “the most influential work of art of the last 100 years” in 2007, when it was precisely 100 years old, but just because it was likely made before your grandparents were born doesn’t mean that it’s in the public domain yet.

In fact, that hoary old museum piece “Les Demoiselles” will be in copyright for several more decades, because copyright’s term has been extended considerably since Hogarth’s day, when it ran from 14 years from the date of first publication. Now the formula is life plus 70 – that is, until 70 years after the death of the author.

(The calculation is based on works providing for two generations of an artist’s family after his or her decease; I wish my grandparents’ pension plans had had similar provision.)

Pablo Picasso's "Les Demoiselles d'Avignon" (1907) depicts five naked prostitutes.

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What is the value of the Mona Lisa?

Had today’s law been on the statute books in 1732, the copyright in Hogarth’s “A Harlot’s Progress” would have lasted until 1834 rather than 1746. That’s a big difference. It means that if contemporary artists of an appropriative bent want to respond to work without worrying about copyright infringement, they should stick to stolidly 19th-century works: the Victorians are almost certainly out of copyright by now.

But you are very tightly restricted when it comes to playing with images created by other people or corporations in your own – or indeed your grandparents’ – lifetime.

Conquering copyright

Ownership of a physical work of art can be transferred in perpetuity (sold), but even if you had personally paid $100 million for a painting by an artist who either was still alive or had died within the past 69 years, you would not have the right to exploit the work’s image commercially; copyright would remain with the artist’s estate.

For your $100 million you get the painting with all its attendant aura, but that doesn’t mean you can stop the artist or the artist’s estate from making the same sum again by authorizing the use of its image on supermarket carrier bags. Every groceries-shopper could have a copy for small change.

"Femme assise, robe bleu" (1939) by Pablo Picasso: $45,047,500 —

On May 15, 2017, "Femme assise, robe bleu" a 1939 painting by Pablo Picasso, sold for $45 million at a Christie's auction in New York.

"Les femmes d'Alger (Version 'O')" (1955) by Pablo Picasso: $179,365,000 —

Setting a world record for an artwork sold at auction when it was purchased by the Qatari royal family in 2015, Les femmes d'Alger is in many ways the quintessential collectible Picasso: bold colors, fragmented planes, nude women, and art historical references (in this case, to Delacroix and Matisse). The work had previously sold for $31.9 million in Christie's 1997 auction of the collection of Victor and Sally Ganz -- a sale that many say ignited the current art boom.

"Garçon à la pipe" (1905) by Pablo Picasso: $104,168,000 —

Pablo Picasso's "Garçon a la Pipe" broke the $100 million ceiling when it sold at Sotheby's for over $104 million in May, 2004 -- the first painting to exceed the record set in 1990 for the "Dr.Gachet." (Interestingly, both "Dr. Gachet "and the "Garçon" achieved their record prices exactly 100 years after having been created by their artists.) Sotheby's Senior Vice President David Norman called the iconic painting "the finest work in public hands that was for sale."

"Femme assise" (1909) by Pablo Picasso: $43,269,000 —

One June 21, 2016, Pablo Picasso's "Femme Assise," one of the artist's earliest Cubist paintings, sold for £43.2 million ($63.4 million) at a Sotheby's London auction, becoming the most expensive Cubist painting ever sold at auction.

"The Scream" (1895) by Edvard Munch: $119,922,500 —

The sale of Edvard Munch's "The Scream" to billionaire Leon Black for $119.9 million in 2012 marked more than a new art record: it was the first time that a pastel, rather than an oil or acrylic painting, came anywhere near achieving such a price. This was in part due to the overwhelming popularity and international fame of the image, and the fact that it is the only version of Munch's signature work that is not owned by a museum.

"Abstraktes Bild" (1994) by Gerhard Richter: $34,190,757 —

Rock star Eric Clapton sold his "Abstraktse Bild" by art star Gerhard Richter in 2012 for £21.3 million, establishing a new record for a living artist and the highest price ever paid for a Gerhard Richter painting. One of the most popular artists at the moment, the octogenarian has seen his work increase in value by over 600 percent in the past ten years, according to art market analysts. His oeuvre is celebrated as much for its range and versatility as for its virtuosity: his paintings tend to focus equally on the intellectual and the aesthetic. This is a particularly strong work, but the provenance -- coming from Clapton's private collection -- made the painting particularly attractive.

"Portrait of Dr. Gachet" (1890) by Vincent van Gogh: $82,500,000 —

Vincent van Gogh's "Portrait of Dr. Gachet" rocked the art world in 1990 when it sold to Tokyo's Kobayashi gallery for $82.5 million at Christie's-- more than twice the previous auction record. A portrait of Van Gogh's doctor, Paul-Ferdinand Gachet, of whom the artist was particularly fond, the painting had belonged previously to financier and philanthropist Siegfried Kramarsky, on long-term loan to the Metropolitan Museum of Art.

"Nurse" (1964) by Roy Lichtenstein: $95,365,000 —

Christie's billed pop artist Roy Lichtenstein's nurse as the "quintessential Lichtenstein heroine," a "femme fatale," and called the painting itself a "dazzling masterpiece." Collectors must have been convinced, bidding the work up to a record price for the artist at $95,365,000 in November 2015.

"Benefits Supervisor Resting" (1994) by Lucian Freud: $56,165,000 —

The portrait of the ample-bodied Sue Tilley, a British government worker, was one of four such paintings the British artist produced of the woman he called "Fat Sue." Described by Christie's in its catalogue as "one of the most remarkable paintings of the human figure ever produced." The portrait -- for which Ms. Tilly reportedly earned £20 per day as a model -- achieved a record for the artist when it sold at Christie's New York in May, 2015.

"Nu couché" (1917-1918) by Amedeo Modigliani: $170,405,000 —

Appetite for Modigliani's work had already been on the rise when this rare nude came up for sale. The work's extraordinary provenance, literature and exhibition history added to its desirability, helping it set a new record for the artist -- and one of the highest prices ever set at auction -- when it sold at Christie's in November, 2015 to a Chinese billionaire bidding by telephone.

"Jimson Weed/White Flower No. 1" (1932) by Georgia O'Keeffe: $44,405,000 —

Long one of America's favorite home-grown artists, Georgia O'Keeffe is celebrated mostly for her magnificent flower paintings -- like this Jimson Weed , which shattered all records for the highest price ever paid for a work by a woman artist -- nearly quadrupling the previous record of $11.9 million set by Joan Mitchell just a few months prior. What's more, the work was also purchased by a woman: Walmart heiress Alice Walton, who bought it on behalf of the Crystal Bridges Museum (of which she is the founder).

Expensive art at auction

“Les Demoiselles d’Avignon,” for instance, has belonged to the Museum of Modern Art in New York since the late 1930s; for nearly 80 years it has benefited from the physical and intellectual exertions of MoMA’s conservators and curators.

But if you wanted to reproduce it in a textbook or use it as the basis for an artwork of your own, you would in the first place have to apply for permission to the Picasso estate, not to the museum.

And you might not get it: the makers of the film “Surviving Picasso” (1996) were denied the right to reproduce any of the Spanish master’s works because the estate was reportedly unhappy with the script’s portrayal of Picasso as a selfish womanizer. Messrs Merchant and Ivory had to make do instead with works by Matisse and Braque (whose estates did not object) to convey the period atmosphere.

Protecting creativity

Copyright is a cornerstone of any democratic, progressive, free society that values and wishes to continue to enjoy the benefits of a knowledge-based economy.

“As the founders of this country were wise enough to see,” former register of copyrights Abraham Kaminstein told the United States Congress in the 1970s, “the most important elements of any civilization include its independent creators – its authors, composers and artists –who create as a matter of personal initiative and spontaneous expression rather than as a result of patronage or subsidy. A strong, practical copyright is the only assurance we have that this creative activity will continue.”

Most people agree that the world would be poorer without the works of Picasso, and in so far as his “creative activity” was supported by copyright, copyright must be a Good Thing.

But, you might ask, what is the “creative activity” of Picasso’s estate? It is certainly not creative in the sense that Picasso was (its most famous, highly controversial “creative” act was putting Picasso’s signature on a Citroën car), and yet it enjoys the same copyright privileges. Actually, it enjoys more: in Picasso’s lifetime, copyright lasted only 50 years beyond an artist’s death.

So copyright, in some measure, is a Good Thing. But, as your parents most probably told you the first time you came home drunk, you can have too much of a Good Thing.

“Beg, Steal and Borrow: Artist’s Against Originality” by Robert Shore, published by Laurence King, is out now.