IntroductionAs the authors of individual creative works of art, picture book illustrators are faced with the challenge of defending their rights to their art, all the while working within a culture that is moving away from ideas of individual authorship, and towards an “information wants to be free” society. The current United States copyright laws are being challenged and might soon change to unfavorably reflect our society’s desire to provide equal and broader access to creative work. Does this shift indicate a change of attitude towards the value of individual authorship of art, and how does this shift affect picture book illustrators?
AuthorshipWhat does it mean to be an author of a creative work of art? The question seems simple enough. If I create a work of art, I own it. I am the author, and therefore the fruits of my labor are my own. Martha Woodmansee, in her essay titled The Genius and the Copyright: Economic and Legal Conditions of the Emergence of the ‘Author’, says that “in contemporary usage an author is an individual who is solely responsible – and therefore exclusively deserving of credit – for the production of a unique work” (426). But as she quickly points out, this is a fairly recent development, and in fact social norms in Europe in the eighteenth century dictated a much different authorial landscape.
Authorship: What it WasIn the wake of the Renaissance, writers, artists, and poets were considered craftspeople above all else. They were repositories of generations of knowledge and skill, which they spent years mastering in order that they could then “achieve the effects prescribed by the cultivated audience of the court to which they owed both their livelihood and social status” (Woodmansee 426). But sometimes there would be an instance of inspiration in which the craftsperson would seem to rise, not only to meet the expected requirements of her craft, but also achieve new heights. These inspirations were said to be provided by either a muse or by God. So in both cases, an artist wasn’t considered personally responsible for authoring their works of art. They were considered to be either vehicles of tradition or vessels of divine inspiration.
This situation provided well for the artist as long as a patronage society functioned. But the reproducibility of printed texts, which started in the late fifteenth century and slowly spread and sped up through the Renaissance, would flood an eager reading public with an exciting new form of entertainment. With this new interest in printed texts, “writing became an individualized activity, a potential source for recognition and social advancement” (Finkelstein and McCleery 70). This is also around the same time that we see the emergence of authors signing their work. “The result of attaching a name to a text was critical evaluation, recognition, and in some cases an enhanced reputation” (Finkelstein and McCleery 70). Elizabeth Eisenstein concurred that the “drive for fame itself, may have been affected by print-made immortality” (qtd. in Finkelstein and McCleery 70).
Writers and artists no longer felt shame for accepting money for their work, although this idea of individual authorship remained a hot topic for debate through the nineteenth century. In 1772, the German writer Gotthold Ephraim Lessing wrote in his essay “Live and Let Live”, a proposal for reorganizing the book trade: "What? The writer is to be blamed for trying to make the offspring of his imagination as profitable as he can? Just because he works with his noblest faculties he isn’t supposed to enjoy the satisfaction that the roughest handyman is able to procure – that of owing his livelihood to his own industry?
…
But wisdom, they say, for sale for cash! Shameful! Freely hast thou received, freely thou must give! Thus thought the noble Luther in translating the Bible. Luther, I answer, is an exception in many things. Furthermore, it is for the most part not true that the writer received for nothing what he does not want to give away for nothing. Often an entire fortune may have been spent preparing to teach and please the world" (qtd. in Woodmansee 436-7).
Here we must consider Lessing’s words in relation to a picture book illustrator. It is true that illustrators and writers would both toil to learn their crafts, and “often an entire fortune may have been spent preparing to teach and please the world,” both in an emotional and monetary sense. But most poets and writers work alone and do not collaborate. Unless an illustrator was a master engraver, so that there was no middleman between conception and execution, a book illustration usually involved two or three “authors.” In the case of George Cruikshank, who illustrated Europe’s first great example of children’s literature, the first English translation of Grimm’s fairy tales; German Popular Tales, he was the one who conceptualized the drawings, transferred it to copper plates, and made the final adjustments during the final etching. But John Tenniel’s famous illustrations of Lewis Carroll’s Alice’s Adventures in Wonderland (1865) were drawn by him directly onto the wood block, and then the Dalziel Brothers, his engravers, would interpret his drawings (Hearn, Clark and Clark 9).
So who would be considered the author, the illustrator or the engraver? The drawings and woodblocks hold different steps of creative evolution, but the print produced from both efforts is the intended work of art. The important thing to consider is whose intentions produced the print? John Tenniel persuaded Carroll to repress the first edition of Alice in Wonderland because he was unhappy with the printing: "That of the White Rabbit as herald in Alice in Wonderland was scrapped and reworked for the final version. A completely new rendition of Hatta in person in Through the Looking Glass replaced the first even after it had been engraved and a proof pulled, and several of Alice as queen on the chessboard also were redone to give her dress less crinoline; “plugs,” or pieces of wood, were inserted in the blocks to make the corrections. The wood engraving was the final work of art" (Hearn, Clark and Clark 10).
It’s the intention of the illustrator that drives the work of the engraver and makes her the unique author of a work of art. So from the beginning of picture book history, when books began to be reproduced for the media market, the concept of authorship was a sticky problem for illustrators, and remains so today.
Authorship: A Modern EvolutionAn industrial evolution began to change societal expectations in Europe and America and consumer culture began to take a more prominent seat in every day life. As Walter Benjamin noted in his famous 1937 essay The Work of Art in the Age of Mechanical Reproduction, “during long periods of history, the mode of human sense perception changes with humanity’s entire mode of existence. The manner in which human sense perception is organized, the medium in which it is accomplished, is determined not only by nature but by historical circumstances as well” (par. 10). The historical circumstances of the eighteenth and nineteenth centuries was of a burgeoning commodity culture, slowly permeating and “simplifying” concepts, actions, and art, through the vehicle of reproduction.
Writers, artists, and illustrators began to be treated like celebrities. They became larger than their work, and their personalities and private lives began to become enmeshed into the aura of their “work.” As Steven Heller and Marshall Arisman note in their book Inside the Business of Illustration, “before radio, motion pictures, and television the printed page was the exclusive entertainment for the American public. Illustrators were household names. Many received fan mail and were paid as “celebrities” to advertise and endorse products” (86). Michel Foucault noted in his famous essay What is an Author, “it would be worth examining how the author became individualized in a culture like ours, what status he has been given, at what moment studies of authenticity and attribution began, in what kind of system of valorization the author was involved, at what point we began to recount the lives of authors rather than of heroes, and how this fundamental category of ‘the-man-and-his-work criticism’ began” (qtd. in Woodmansee 426).
Authorship and the Relation to CopyrightThis new commodity culture offered up authors of texts and art as geniuses who were not only personally responsible for creating masterpieces, but sole owners to the rights of those masterpieces. Copyright laws began to acknowledge this author authority, by not only extending economic rewards and protections, but by making it clear that those rewards and protections were the best way to encourage the dissemination of ideas (“Graphic” 29). By instilling copyright laws that were effective, both the artist and the public would be well served.
Copyright: What it WasWhile the earliest recorded English copyright law, The Statute of Anne of 1710, only protected against anyone but the author reproducing a work, today’s copyright laws are more focused on giving an author the right to authorize “use” of the work (Joyce et al 3). Not long after the American Revolution, a copyright clause was added to the Constitution and enacted in 1790. Article I, Section 8, Clause 8 gave the Federal Government the right to legislate regarding copyright and patent: “Congress shall have Power…To Promote the Progress of Science and useful Arts, by securing for limited Times, to Authors and Inventors, the exclusive Right to their respective Writings and Discoveries” (qtd. in Joyce et al 19). Then in 1905, President Theodore Roosevelt ordered a revision of the copyright law so that it might better reflect modern conditions. In the 1909 Act that followed these revisions, copyright was effective the day of publication, instead of the moment of copyright registration. The 1909 Act did not protect unpublished works.
Copyright: What it Became and Why it WorksThe 1976 Copyright Act changed this so that a work of art is protected by copyright laws the moment it is “fixed” in tangible form. Even without a copyright notice, or failure to register, once a work of art or text is created, it is protected. The 1976 Act also made it clear that an author’s copyright is actually a bundle of rights, and the author can choose to transfer or license all or part of those rights. The author has rights to her work for life plus 50 years, which was extended in 1998 to life plus 70 years by the Sonny Bono Copyright Term Extension Act. Also in 1998 the Digital Millennium Copyright Act broadened copyright law, but specifically Section 512 which, in general, limits internet service providers from copyright infringement liability for simply transmitting information through the internet. However, thanks to Section 512 the internet service providers must promptly remove material from their user’s websites that appear to constitute copyright infringement (“Graphic” 42).
The 1976 Copyright Act brought the United States closer to the standards of the Berne Convention, which was a multinational treaty for the protection of literary and artistic works that accepted moral rights as a matter of course. Moral rights are a kind of doctrine that recognizes “certain inherent personal rights of creators in their works, even after works have been sold or the copyright transferred” (“Graphic” 51). The 10th edition of the Graphic Artists Guild Handbook: Pricing and Ethical Guidelines outlines the four rights that the doctrine traditionally grants to artists and writers:
1. The right to protect the integrity of their work to prevent any modification, distortion, or mutilation that would be prejudicial to their honor or reputation.
2.The right of attribution (or paternity) to insist that their authorship be acknowledged properly and to prevent use of their names on works they did not create.
3.The right of disclosure to decide if, when, and how a work is presented to the public.
4.The right of recall to withdraw, destroy, or disavow a work if it is changed or no longer represents their views (51).
The members of the Berne Convention were required to “frame their copyright laws to certain minimum standards and to guarantee reciprocity to citizens of any other member” (“Graphic” 51). By joining the Berne Convention in 1988, the United States extended protection of American works in an additional 24 nations, thereby significantly slowing the foreign piracy of American works.
Certainly picture book illustrators, and illustrators in general, are greatly affected by these copyright laws. Under current copyright laws, an illustrator may create, let’s say a children’s picture book, and transfer all of her rights to the illustrations to the publisher, and then ask for a royalty agreement that will ensure that if the book is popular enough with the public, she will be compensated for her hard work. The mastery of the illustrations is a major component to the success of a children’s book, and the author of those illustrations can, if agreed upon before it is published, reap the benefits of a media market. An illustrator may want to reclaim her rights to those illustrations, and may do so if the publisher agrees, or if she waits till 35 years after the initial transfer and through a simple process, terminates the original copyright agreement. The illustrator of the picture book may also decide to license the works for limited usage, so that the publisher can print a book, but can’t create a cartoon based on the characters within the book. Or the illustrator can agree to license those rights to the publisher so that if her book gets turned into a major motion picture, like Polar Express by Chris van Alsburg, she will be compensated for being the author of the original book, which inspired the movie.
And if an illustrator creates a work of art and then realizes that someone has, without her permission, misused it in an advertising campaign, a campaign that has made millions for whatever company is being represented, she has the legal recourse to stop the representation and get fairly compensated for the misuse. Because illustrators have always worked within a commodity culture, instead of in opposition of it, copyright laws have been important tools to maintaining economic independence. How can an illustrator survive if her rights are easily stripped? And if illustrators can no longer create, can no longer afford to make art, how does that serve the dissemination of ideas that seems to have become so central to American life.
Copyright: Where Will it Go?This stripping of an author’s rights and protections has recently taken a disturbing turn in the Shawn Bentley Orphan Works Act of 2008. To preface this discussion, we should turn back to the concept of authorship. The individualization of the author seems to hold no place in this new commodity culture, where information flows freely, and the demand is outpacing the reality of laws. If an author holds pure authority and truth to her works, and society believes in that authority, she has the power to defend her rights to her works. But with Roland Barthes short essay The Death of the Author, published in 1967, came a new kind of perspective on the authority authors bring to the table regarding their own work:
"…an author did not exist once his work passed into the public domain. Remove him, and you created room for new meanings, you liberated the text. In an attempt to shift critical emphasis from author-centered enquiry to reader-based analysis, Barthes argued in dramatic fashion that how readers interpreted these texts was now all-important to critical reflection.
…
…readers created their own meanings without the aid of this concept of an author – they, in a sense, were authors in their own right. Each time readers read something they would come away with entirely different meanings and significations" (Finklestein and McCleery 81).
This idea of the death of the author was supposed to be liberating and freeing to society, as well as to artists. It was supposed to make room for diversity and new interpretations. Of course it rang hollow with groups such as women and minorities, who hadn’t yet had the chance to develop the same kind of authority that came with being a white male author. Yet critics like Barthes and Foucault continued to drive home the point that even though an author creates something, her choices are influenced by many social factors, and that free choice is not quite so free. Sure she owns what she creates, but her creation can change at any time through interpretation, appropriation, etc.
This view of authorship is much more agreeable to the digital age, an age in which everyone is an author through blogs, websites, and online forums. Everyone’s opinion counts, and everyone borrows from everyone else. The personal respect that was the norm for authors, is fading through the impersonal vacuum of the internet. How can one hold an author’s work as being the highest form of truth, when that author’s work is easily manipulated through photoshop, collaged into anyone’s self portrait, or taken completely out of context?
The Orphan Works Act promises to use this new attitude to favor this “information wants to be free” society. The title of this Act is misleading at best. The supposed purpose of this Act is to free up works that are still under the 70-year copyright protection, but the author has passed away or is missing and the work is languishing in limbo, unable to benefit either the author or the public. Say a work of art was created and then the author passed away and it’s now 50 years later and no one has kept up with the copyright of this work. Under current copyright, this work is protected and therefore cannot be used by anyone, not even libraries and museums, for another 20 years. The Orphan Works Act will free these works up for general consumption, but it will do so by freeing ALL works from copyright protection.
Artists will have to register, for a fee, all drawings, sketches, doodles, etc. with privately owned and operated online registries if they want their work protected. No longer will a work be copyrighted the moment it is created. Even works that have previously been registered with the Copyright Office will have to be registered with these online registries in order to be protected. The point of the online registries is to give people who are looking to reproduce works of art, the ability to perform registry searches, in order to determine if the work they want to use is in fact an orphaned work. If this person can prove that they have done a reasonable search for the work of art, they can assume it’s ok to use for whatever purpose. But the Act doesn’t stipulate the allowed number of registries. There could be hundreds. So even if an artist has done the work and registered with an online registry, if the person searching for your work doesn’t look at that particular registry, they are in the clear.
An illustrator could spend thousands of dollars and many more hours registering all her work in as many online registries as she can find, and someone could still reproduce her work without permission and, if caught, only have to pay what they normally would pay if they had commissioned the work. Hardly a great deterrent.
This Act will not only affect artists and illustrators, but will also impact anyone using social networking sites or photo/file sharing sites like Flickr or Snapfish. A photo could be chosen from one of those sites, after deemed an orphan work through a feeble search through one or two ineffective registries, and used in a product campaign for something that the original author of the photo might morally oppose, or not want their work to be associated with. The scope of abuse if this bill is enacted is tremendous.
This bill was originally written by eight American University law students under the direction of a law professor named Peter Jaszi. Jaszi wants to overthrow the romantic notion of authorship and reinstate the idea that all authorship is a communal activity (Holland). As stated above this digital era we’ve entered is the perfect stage for just such a redefinition of authorship. But the ease with which this Orphan Works Act can be abused, and will be abused, will only serve to weaken the already tenuous hold artists have over their works of art, and by proxy, their livelihoods.
Conclusion
Artists are not above the needs of a society. But does society really need this much access to manage and manipulate an author’s creative work? The Orphan Works Act has been released to Congress during the last week of April 2008. The
Illustrator’s Partnership of America has taken up the battle cry of “Preserve Visual Artists’ Copyright,” and is doing their best to fight this Act that, if enacted could destroy not only illustrator’s rights, but any visual artist’s rights. But they are faced with years of critical theory from convincing thinkers who say that the world would be a better place if we remove the rights of authors and return all creative work to the people. If done, artists will at the very least start to lose the ability to support themselves, and unless we return to a patronage society, will fall into oblivion; living in a society that holds no value in their work, and support no creative inspiration above the most meager of expectations.
Works CitedWoodmansee, Martha. “The Genius and the Copyright: Economic and Legal Conditions of the Emergence of the ‘Author’”. Eighteenth-Century Studies 37 (1984): 425-448.
Finkelstein and Alistair McCleery. An Introduction to Book History. New York: Routledge, 2005.
Hearn, Michael Patrick, Trinket, Clark, and H. Nichols B. Clark. Myth, Magic, and Mystery: One Hundred Years of American
Children’s Book Illustration. Colorado: Roberts Rinehart, 1996.
Benjamin, Walter. “The Work of Art in the Age of Mechanical Reproduction”. 1936. 9 May 2008 <
http://www.marxists.org/reference/subject/philosophy/works/ge/benjamin.htm>.
Heller, Marshall Arisman. Inside the Business of Illustration. New York: Allworth, 2004.
Graphic Artists Guild. 10th Edition Graphic Artists Guild Handbook: Pricing and Ethical Guidelines. New York: Graphic Artists Guild 2001.
Joyce, Criag et al. Copyright Law. New York: LexisNexis, 2005.
Holland, Brad. Personal interview. 5 April 2008. <
http://www.sellyourtvconceptnow.com/orphan.html>.