My 6th graders just finished a 3-day unit using Photoshop to rework a Renaissance painting. Today, we had a belated yet robust conversation about copyright, fair use, and the public domain. We specifically focused on two key pieces of art familiar to most everyone: Leonardo da Vinci’s Mona Lisa and Shepard Fairey’s Hope.
The class began with an awesome slide show put together by Yoshiko Maruiwa consisting of different images of the Mona Lisa. Kids were asked: Is it art? Who owns it? The answers were fabulous and fascinating. Most students decided that the altered Mona Lisa’s should be jointly owned by Da Vinci and the other artist. Some thought only the new artist owned the piece, as it referenced the Mona Lisa but was not an exact replica. One romantic hopeful thought no one should own the art, as Art is an exression of love and should be shared as a gift to the world. True.
After, I continued and facilitated the conversation from the front at the Eno board, punctuating our discussion with a bunch of quick Google searches to answer the questions that were brought up.
The Mona Lisa has a long and convoluted history. It was painted by Leonardo da Vinci who was commissioned by some patron. Da Vinci had it in his possession while on a trip to France and sold it to King Francois. It became part of the Royal Art Collection, passing from monarch to monarch until the French Revolution. At this point the painting became part of the public art collection housed at The Louvre and overseen by the French Government. It was stolen by an Italian and returned to The Louvre two years later (where it is still housed).
Q: Is there any Copyright protection on da Vinci’s Mona Lisa?
A: No. The copyright laws were not invented at that time.
A basic tenet of copyright law is that once a copyright has expired, it enters the public domain, for all to use. But when someone adds a copyrightable contribution to a public domain work, that contribution is copyrightable.
Title: LHOOQ
Year: 1919
Artist: Marcel Duchamp (1887 – 1968)
License: Protected by French copyright until 2039 (life + 70 years)
We were floored that there are two copyright camps based on whether you are in the US or in France:
1. This image is in the public domain in the United States because it was first published outside the United States prior to January 1, 1923. Other jurisdictions have other rules. Also note that this image may not be in the public domain in the 9th Circuit if it was published after July 1, 1909, unless the author is known to have died in 1940 or earlier (more than 70 years ago).
2. This file will not be in the public domain outside in its home country until January 1, 2039 and should not be transferred to Wikimedia Commons, as Commons requires that images be free in the source country and in the United States.
I shared a brilliant idea of printing T-shirts of Duchamp’s painting and selling them to French tourists as soon as they land in the US.
Then, we talked about Shepard Fairey’s Hope painting which was inspired by an Associated Press photograph. Essentially, the Associated Press commissioned Mannie Garcia to take photos of Obama at an event in 2006. Fairey adapted the photo in 2008, and his painting became immensely popular and was reproduced on button, tshirts, posters, sneakers, etc. The AP sued Fairey because Fairey did not ask permission to use the image, Fairey never cited the AP as the owner of the image, and the AP was not compensated. Fairey filed a countersuit saying he had Fair Use to adapt the original image. In an interview with Iggy Pop for Interview Magazine, Fairey states: I feel like what I did was both aesthetically and conceptually transformative. I think it’s fair use, but the Associated Press thinks it’s copyright infringement, and they’re really going after me.
Unfortunately, Fairey destroyed evidence. We clicked to the Wikipedia entry about Shepard Fairey and read: …in October 2009 Shepard Fairey admitted to trying to deceive the Court by destroying evidence that he had used the photograph alleged by the AP. His lawyers announced they were no longer representing him…In May 2010, a judge urged Fairey to settle. Another good source is this piece in the Huffington Post.
At the end of class, we revisited the legality of our own Photoshop renditions of Renaissance paintings. All of the paintings we used are in the Public Domain (since they were painted hundreds of years ago before copyright laws were created), and each student produced copyrightable contributions. However, I pointed out two main issues that could prevent us from copyrighting our versions of famous masterpieces:
1. Even though the artwork is in the public domain, the digital file we used was downloaded from Artstor.org.
On their website, Artstor declares it is a “non-profit digital image library for education and scholarship.” Columbia University subscribes to Artstor, and therefore my school has access to the library. Under their Terms and Conditions, Artstor permits use for classroom instruction, related activities, and noncommercial scholarly or educational presentation. I’m currently waiting to hear back from Artstor’s legal department to find out if my students could feasibly copyright their photoshopped version of an Artstor digital image of a public domain painting.
2. All of our work was done on Columbia’s hardware using Columbia’s software during a “work” day at Columbia.
Any discovery that a scientist or professor makes while on the job or using work equipment belongs to the company. Doesn’t that apply here too?
Karen Blumberg 
