In 2015 the city of Portland, Oregon celebrated the thirtieth birthday of its landmark statue Portlandia. But despite Portlandia’s iconic status in the city and in the world—as the second largest copper statue—there wasn’t much of a party. And you won’t find her image on postcards or souvenirs. Though she’s located in public space, Portlandia’s maker Raymond Kaskey retains commercial rights to the piece, and thus has veto power for duplication or re-creation of related images.
Reference guidelines are loosely obeyed and copyright infringements difficult to catch.
Art has always had to address problems of attribution and authenticity. The Information Age has only complicated this. And the situation becomes even more muddled when the artistic object in question is presumed to be public. Yet, not all public art stakeholders would take Kaskey’s side in a debate over copyright infringement. There is, after all, a notable difference among ubiquitous documentation (Instagram photos and the like) and documentation for press, merchandising, and what I’d call records of fact. With that in mind, Portlandia raises some important legal and philosophical points for debate.
What are the merits of copyright vs the freedom of panorama?
According to “The Intellectual Property Wiki” on Gettyimages, “As a general rule, places that charge an admission fee or require a ticket for entry usually require special permission for commercial photography.” Following this, it would be reasonable to assume that no permission is required when that place is accessible without a fee or ticket. Not according to federal copyright law.
U.S. copyright law gives the copyright holder—in our case, the artist—the exclusive right to produce derivative works, including photographs. The matter of photography is not black and white, however. Parts of the law automatically protect works that are fixed on or in ‘tangible mediums’—murals on walls, for example. Distinctions and exceptions are also made based on how photographers use the images, how much of a work they capture in the frame, and which creative elements of the original work they bring to their adaptation.
In Europe, the situation differs. The Freedom of Panorama, which was recently upheld by a vote in the European Parliament, maintains that the public has the unrestricted right to use photographs of public spaces showing copyrighted structures without infringing on the rights of the architect or visual artist. In the United States,freedom of panorama means you may freely take photos of permanent buildings and use them how you please, but you cannot do the same with photos of copyrighted artworks and sculptures. The EU’s Freedom of Panorama is not as important for protecting selfies as it is for allowing the uninhibited depiction of public spaces within educational records.
Where do we draw the line between works of art or records of fact?
Photographs can be characterized either way, but when we’re talking about a photo of a work of public art displayed on Wikipedia there’s little chance that the reader would assume that Wikipedia created whatever work of art they are depicting. In this case, a photograph of a work has been appropriated for public knowledge sharing. There’s certainly something commendable about that as far as public art is concerned—particularly when appropriate credit is given to the artists.
In many other cases, credit isn’t given where and when it’s due. Think of editorial content that cites the photographer of a work of public art but fails to mention the actual artists. In an odd turn of events, the appropriation is deemed more reputable than the original. Perhaps this is an unavoidable side effect of the technological mediation of objects in the form of images. Reference guidelines are loosely obeyed and copyright infringements difficult to catch.
Art housed in private institutions is privileged in this respect; they have more ownership over the information that contributes to art’s authenticity. Not only is a Van Gogh more clearly and reliably a Van Gogh in a museum, but as the International Network for the Conservation of Contemporary Art puts it:
Artists often cooperate with conservators to integrate their works into the [museum] collection properly. This collaboration results in documentation that is specific to the installation and forms the basis for the display and management of the work.
When the artist collaborates in the process of documentation, that documentation becomes a work of art in and of itself. Whether public art should operate differently and concede ownership to public appropriation is a relevant question without a definitive answer.
What does ‘liveness’ have to do with public art documentation?
When we talk about the conservation of public art, we can be referring to its physical preservation but also to how it may or may not be possible to conserve its presence through technological mediation. By presence I mean the simultaneous physical presence of the artwork and the public in the same space and moment of time.
Professor of performance and technology, Steve Dixon, identifies two conflicting views in cultural studies concerning the photograph’s claim to preservation and liveness. On the one hand, there’s Walter Benjamin who argues that when an artwork is mechanically reproduced, its presence is diminished. Benjamin writes, “Even the most perfect reproduction of a work of art is lacking in one element: its presence in time and space, its unique existence at the place where it happens to be” (Dixon 2007). On the other hand, there’s Roland Barthes who considers photography a means to making the reality of the past live again. He contends that “every photograph is a certificate of presence” (Dixon 2007); rather than being fabricated ‘copies’ of reality, they are authentications. Pics or it didn't happen.
I imagine Barthes’s point of view is appealing to conservationists and documentarians of temporary public artwork. After the work is uninstalled, we have no choice but to rely on multimedia documentation to get an idea of how it may have been experienced (see Christo & Jeanne Claude’s famous Gates). To Benjamin’s credit, though, participation or interactivity cannot be saved. When it’s re-presented, it becomes something else altogether.
Today, photography isn’t a standalone form. We have a multitude of methods to document interactivity. For all these methods may be worth, they’ll ultimately fall short of replicating the live event. Naturally, with this, the problem of ownership remains.
What, then, should we make of the technological mediation of public art?
Ubiquitous documentation, regardless of its original intent, represents an end to seeking permission. With this, there’s a renewed need for attribution to be given where it’s due and for public artists to consider how ‘public’ they want their art to be. Tools including Creative Commons & initiatives such as Open Source validate this as a pressing issue. If someone in another country wants to own a reproduction of a piece of public art that they’ve never seen in-person—to meet the original halfway, as Benjamin puts it in “The Work of Art in the Age of Mechanical Reproduction” (1970), why should an image of that work—or even the code and hardware used to make it—not be ‘public’ for them?
Maybe all modes of presence wherever the artwork and public meet and whether live or mediatized now need to be regarded on equal grounds. Where a commitment to access is concerned, we need policies which uphold the trend that art’s public and art’s reach has been extended beyond the physical and the now.
At New American Public Art, we don’t have an easy solution for this attribution quandary just yet. We seek a way to make public the process of making public art. We could learn from our interdisciplinary colleagues: perhaps the answer lies somewhere in between the practical reference style of scientific papers and the completionist listing of film credits.