©ollectanea

Last week brought reports of the death of Robert Rauschenberg, an important modern artist. You can find his obituary in the New York Times, along with a slide show of some of his paintings.

I find his work esthetically delightful, and I just see copyright all over the place. There is the usual: He is creating new and original works that are fixed on the canvas or whatever medium (including, apparently, dead birds and tires). For the newspaper to include examples of his work, a photographer needs to snap a nice clean shot of the painting. That raises the turmoil of Bridgeman Art v. Corel and the question of copyright for photographic images of paintings. Then there is the question of whether the newspaper is within fair use for running images in the print version and posting a wonderful set of slides on the NY Times website. Those are all the usual questions that arise in almost any copyright conversation about art and copies.

I want to raise another important issue. Rauschenberg's success as an artist depends on his creative uses of existing materials. Yes, sometimes he uses old tires, and I don't think that Goodyear has much to say about it. But in many of his works he uses existing (evidently) copyrighted works: photos of JFK, sports images, political posters, newspapers, and more. Surely, he did not get permission to use these works, and Rauschenberg scholars out there can tell me if he has ever had a copyright challenge over these creative uses.

His use of, say, a newspaper page stumbles over a host of copyright issues. It may be a reproduction, and when it hangs in a museum it is a public display. It certainly looks like a derivative to me as he transforms and recasts the original work into art. Rauschenberg is a great example of two important copyright concerns. First, his creativity depends heavily on fair use. Fair use is essential for allowing artists and other creative folk to make good, exciting, and innovative uses of existing works. If you do not like Rauschenberg's art, I will even say that fair use is essential for permitting bad uses of existing works. Like his art or not (I like it), the world is a better place because he challenges us to see it differently.

Second, his work is an example of the importance of copyright owners *not* imposing restrictions on the uses of the images. Many owners and licensors supply photographic images of various works, and sometimes the service of making and delivering the copy comes with a license agreement that attempts to set conditions and restrictions on cutting, cropping, altering, etc. the original image. If those rules applied to his raw materials, Rauschenberg could not make his art from photos of Kennedy and Warhol could not produce his visions of Elvis, Marilyn, and Queen Elizabeth. We would not have a mustache on the Mona Lisa.

The world is a better place for having art. Almost always, the art gets instant copyright protection. Sometimes the successful creation of the art depends on freeing materials from the constraints of copyright and contract. I have no idea of their position on these things, but I hope that when the next artist wants to crop and clip a piece of a Rauschenberg painting, his estate will remember the virtue of sharing.