"Do What U Want": The Work of Archives in the Age of Digital Reproduction

Yes, the title alludes to both Lady Gaga lyrics and Walter Benjamin.  The chorus of the Lady Gaga song referenced in the title is as follows: “You can’t stop my voice ‘cause you don’t own my life, but do what you want with my body.” Though clubgoers will probably not take notice, Gaga’s ironic play with the dichotomy of intellectual and physical property illustrates a growing problem with today’s society: as the physical and digital converge, the distinction between intellectual and physical property becomes a very blurred line.  Benjamin’s famous article “The Work of Art in the Age of Mechanical Reproduction” argued that the increasing ease of the reproducibility of art was changing the value of art itself, shifting the authority to define what makes “good art” from the bourgeoisie to the people.  This essay will provide examples of how this shift has been stifled by copyright and its abusers and ask what archives are doing to prevent (or propel) this abuse.

In the documentary Mexican Suitcase, the ownership of the newly uncovered Robert Capa photographs is briefly called into question.  The accidental owner, reluctant to immediately hand over the goods to the International Center of Photography (ICP), eventually gives in and donates Robert Capa’s negatives to the organization.  Why wouldn’t he give them in the first place though?  He did not take the photographs in the first place so he certainly doesn’t have any claim to them.  What right does Cornell Capa, his brother, have though?  Does he have a right to the images simply by virtue of being Robert’s next of kin?  I have faith that the ICP was the right decision in the end, if only because it is probably the best equipped to handle to the materials, but what worries me is the issue of copyright.

Copyright laws have evolved throughout the years to be more and more restrictive, and for whose benefit in this example?  Robert Capa, who has been dead for nearly 60 years?  What does he stand to gain from their posthumous licensing?  In fact, if not for the 1998 Copyright Term Extension Act and the formation of Magnum Photos and the ICP, Capa’s images of the Spanish Civil War would have already been considered public domain by the time they were found.  Through their transference to the ICP, the negatives will almost certainly retain their copyright status by virtue of some rather convoluted legislature well after the deaths of Robert Capa and anyone reading this.

 

Intellectual property rights are undoubtedly important.  They protect creators from having their work stolen commercially, and in theory, provide a space for creators to create while still making a living.  Somehow though, these legally granted rights have taken on a life of their own.  Rather than fostering creativity, intellectual property laws have historically stifled it.  Consider Daguerre’s English patent of his photographic process; the result of his shrewd attempt at squeezing money out of the English was a significant lack of English Daguerreotypes.  Meanwhile, French and American Daguerreotypists were able to practice their craft free from legislation.

Last week, part of our class discussion revolved around Sontag’s choice to not include the cited photographs in her essays from On Photography.  In an effort to hypothesize the logic behind the decision, we painted her as an elitist and posited that she was trying to prove her point about the connection between memory and image. A more likely cause is that it would have proven too difficult to obtain the myriad of permissions she would require to make here case.  This happened with a Carole Armstrong article featured in the journal October that critiqued Diane Arbus’ photography which apologized for its lack of Arbus images by stating that “[as] a condition of granting permission to reproduce the requested photographs, the estate wished to exercise censorship over the contents of the article.”  Even though Sontag’s work could be defensible as “fair use,” the threat alone of legal battles that might have ensued resulted in work that confusedly lacks critical evidence.

While the Mexican Suitcase and Sontag examples both deal with intellectual property that does fall under copyright, how many of the institutions we hope to work at hold materials whose copyrights have expired to the greener pastures of public domain.  Yet in spite of this, these institutions often have blanket policies for licensing all of their materials, regardless of a work’s copyright status.

I recently had a patron request an image for publication and had to turn them down upon examining the back of the photograph.  A copyright clause declared the owner of the photograph, taken in the 1890’s, as what is now Historic New England.  I shrugged and apologized to the researcher who, presented with a series of new hoops to jump through, selected a different (and probably inferior) photograph.  The following week, I came across a duplicate of the photograph with no copyright notice on the back.  Had the researcher presented me with the duplicate at the onset, I would have rightfully assumed it to be public domain and the researcher would have walked away happy.

This is a perfect example of the absurdity of copyright law, and also a good example of what Benjamin referred to as “the conquest of ubiquity.”  Because these photographs were mass produced, the notion of archival institutions having claim over a single copy will eventually become a moot point.  The digital age is making it even more difficult for works in the public domain to remain under the control of false copyright claims.  

We, as archivists, scoff at barriers to access while remaining complicit with unwarranted barriers to use.  Archivists need to come to terms with this broken copyright system or else become obsolete.  The answer is not to guard ourselves against false copyright claims by creating our own false copyright claims, but to instead fight back, encouraging donors to not only grant copyright with their donations, but also to dissolve these rights upon accession.  Generally speaking, if a publication distorted a fact cited from a collection, archivists would leave it up to historians to refute the misinformation.  Why then do archivists not find it unethical to throw themselves into the legal ring with questionable license fees?  The system is not going to be fixed by passivity, and archivists are in a strong position to help tilt the scales back in the direction of fair use and public domain.  So the next time a researcher inquires about licensing fees for a work squarely in the public domain, decline the money and politely inform them they can do what they want with the photo.  (You should probably discuss the idea with your boss first though!)

Bibliography

Armstrong, Carol. "Biology, Destiny, Photography: Difference According to Diane Arbus." October. 66 (1993): 29-54.

Benjamin, Walter, and J A. Underwood. The Work of Art in the Age of Mechanical Reproduction. London: Penguin, 2008.

Mazzone, Jason. Copyfraud and Other Abuses of Intellectual Property Law. Stanford, California: Stanford Law Books, an imprint of Stanford University Press, 2011.