Contemporary Art and Copyright
A discussion between Founder and Director of Guest Work Agency Alana Kushnir and artist Kez Hughes, with introduction by Adam Stone, director LON Gallery
Installation view, Kez Hughes: Portraits, LON Gallery, 2020
Adam Stone: Kez, I know your practice is built upon a supreme love of art – apparent through many guises as curator, educator and artist – how has that informed your choice to paint other people's artworks as your predominant subject matter? On one hand I think you could see your work as a homage to your contemporaries, whilst in more recent works you're moving towards giving yourself control over the way you re-present your subject matter through scale, cropping and including portraits of artists. How has this extension changed or developed the ideas central to your work? Although in similar territory, it seems quite a shift from your early CV paintings.
Kez Hughes: I’m informed by my love of art and ideas – my work has always changed in response to learning and seeing more. Perhaps with all producers, given time to focus on a style, concept, process or narrative, your familiarity allows an almost unconscious impetus to push and experiment. The more art I see and the more people I meet in the art world, the more my aesthetics are challenged and evolve. Running CAVES definitely opened my eyes to different perspectives around representation and beauty.
Colour, harmony and composition have been classical tenants that I have been attempting to incorporate into my work of late. Also, experimenting with Portraiture has been a painfully exquisite challenge – it’s way out of my comfort zone and injects a little adrenaline into what is ultimately a very mechanical and time-consuming process.
I don’t think my work ever veers far from its dogma of ideas around status, authenticity, ownership and cultural production, whether it’s a painting of an artist’s CV or a limited-edition Duchamp toilet roll. With so much excellent art in the world there will always be influences that effect my practice. I hope it continues to change and improve.
Alana, does the art you are attracted to evolve over time? Have you seen your experiences or influences in the art world change the way you curate or present art?
Alana Kushnir: I have always been attracted to art that has multiple layers of meaning. Art that can simultaneously be taken at face value (and if that’s all you need, then that’s okay with me) and that can enable you to think about life in a deeper state (if you so choose). I think your Portrait Series is a great example of that. Yes, it’s wonderful if for example, you know Nell’s work and you can make that connection in a short amount of time, and then your mind wanders off from that point, but equally I think it would have been really fascinating to see these works without knowing anything about the artists, and learning about them through experiencing your works.
The other thing I’ve observed lately is that I'm a real sucker for art that’s about art, artists, the art world, curating, exhibitions etc – that speaks to me because of my personal experiences growing up studying art and then doing the professional thing in the art industry. And also, art that is about or works with the freedoms or constraints of the law. These concepts of authenticity, ownership and status are so central to art and to how law intersects with art.
Kez Hughes, Nell, I AM mouth MAGIC, 2017, STATION Gallery., 2020, oil on linen, 66.5 x 49.5 cm
Kez, I’m really curious to know if you’ve thought about how your work might be perceived in the eyes of the law? Not so much whether it’s “right” or “wrong” (because the law is rarely as black and white as that, and frankly, I don’t think that’s a very interesting question) but more so, whether you are consciously trying to work through legal concepts like copyright and property, which are very much related to authenticity, ownership and status?
KH: Copyright is the main factor controlling what I paint, which makes copyright my painting nemesis. The limitations of both artist permission and copyright law severely restrict the images I can paint and exhibit. I daydream about magically receiving permission to re-interpret any artwork I wish. Eventually, I would love to paint all my favourite international artists’ work – for example, exhibiting a Sylvie Fleury next to a Marcel Broodthaers – yet seeking permission for the copyright to repaint a Broodthaers work appears like a terrifying and daunting occupation to me. From the beginning I have tried to obtain permission from the artist, as a rule I don’t start work until I get the all-clear. My fear of upsetting a fellow artist and/or litigation is real. As much as I wish I was, I’m not a punk-provocateur — I like artists and art (just about) all of the time, so respect is a big thing for me. That said, my knowledge around copyright could be better informed. Is written permission enough? There is also the grey area of photography for me, should I have double permission from the artist and documenting photographer?
AK: I agree with you - that respect of the source, of the artist is so vital. Irrespective of what’s legally required, I always encourage asking permission. I think that the opportunity to build relationships with others through asking for permission is often undervalued. It’s interesting to me too that this area is often a source of fear and anxiety for many, and I wonder if these emotions are at least partly the result of a lack of knowledge around exactly where one stands in the eyes of the law.
In addition to seeking permission, attributing the source work and the artist – as you do in your titles – is also important. In Australia, copyright authors are also granted certain moral rights, including the right to be attributed as the author of the work. Even if there is a valid exception to copyright infringement (for example, it’s a form of criticism or satire), you should always attribute the underlying author wherever possible.
Reproducing a photograph of an artwork is an interesting one as in this scenario you have multiple layers of copyright which are (presumably) authored or owned by different people. Think of it like a layered cake where each layer has a different flavour and texture. The base layer would be the artwork that is the subject of the photograph. Copyright in that underlying artwork would be owned first by the artist, the person put the artwork into the “material form”. The middle layer would be the photograph of the artwork. Copyright in that photograph would (generally) be owned first by the photographer, the person who put the photograph into the “material form” by pressing the button on the camera. There are certain exceptions to these first ownership principles, but not worth going into here.
Kez Hughes, Jean Dubuffet, Arbre aux deux étages 1970., 2020, oil on board, 40 x 52 cm
Another requirement for copyright to subsist in the photograph is that it is original – that the work has originated from the author as opposed to somewhere else. If it’s a photograph of an existing work, then is it original? Interestingly, the answer to this question may change depending on what jurisdiction the photographer is in and if there is a claim, then where the alleged infringement has occurred. In Australia, simply setting up the scene for the photograph and pushing the button on the camera is likely to be considered sufficient skill and labour for the work to be original.
On the top layer of the copyright cake there would be your work – a reproduction of a photograph of an artwork. Again, we need to ask, if your work is a copy of an existing work, does it pass the originality test? There are a number of interesting cases around the question of what is “original” for the purposes of copyright law. When I have my lawyer “hat” on and am giving legal advice, my advice would be guided by the interpretation of the term by these cases, rather than a general or art historical understanding of originality.
KH: This is all very interesting and a relief to know I am closer to the right side of the copyright sponge cake.
The most rewarding aspect of gaining permission has been meeting so many artists I otherwise may not have. I am always surprised with the enthusiastic permission I receive from artists I contact – this goes a long way to tempering any anxiety I may have around the process.
Can you comment on when and how an artwork may fall out of copyright and into public domain? Are an artist’s artworks copyright free 70 years after their death? And is this the reason there are so many Henri Rousseau pillow covers and Claude Monet umbrellas around?
AK: Sure, so copyright does not last forever. The precise length of time that it lasts depends on the jurisdiction it is protected by and also the category of subject matter that it falls into. For example, under Australian copyright law an “artistic work” receives protection for 70 years after the death of the author. The catch here is that your work has to fall under the definition of “artistic work” under the legislation. The actual wording in the definition includes:
“(a) a painting, sculpture, drawing, engraving or photograph, whether the work is of artistic quality or not;
(b) a building or a model of a building, whether the building or model is of artistic quality or not; or
(c) a work of artistic craftsmanship whether or not mentioned in paragraph (a) or (b);…”
So, if a work of art has been sanctioned as a work of art by art historians – for example, Duchamp’s infamous urinal and his other readymades – it doesn’t necessarily mean that it would be considered an “artistic work” for the purposes of copyright protection. Could these be considered sculptures merely by Duchamp’s act of placing the work in an exhibition context? I’m not sure. The Estate certainly claimed it to be though and continued to produce editions after his death. It is this concept of 70, or however many years, after the death of the author that allows an Estate to continue to exploit the copyright in the work long after the artist is gone.
However, 70 years after the death of the artist is certainly not the magic number for copyright protection of all art forms. For example, film and video is treated as a separate type of subject matter under the Australian copyright legislation, and the length of copyright protection for what the legislation calls a “cinematograph film” is 70 years from the date the material was made public. In practice, this means that copyright in a moving image work can last for a much lesser length of time than a painting or a sculpture.
Once copyright does expire and the work enters the public domain, this doesn’t necessarily mean that all bets are off. This is where I come to answering your wonderful point about Henri Rousseau pillows and Claude Monet umbrellas. A museum or gallery (or private collector for that matter) who owns the physical work (i.e. not the intellectual property, but the tangible property) has the right to possess that object to the exclusion of all others. They also have the right to grant access to that object, on certain conditions. This is how the age-old “no photographs” rule in many museums survives as a condition of your access, even if copyright has expired. The museum then takes the “official” photograph of the work, and as per our earlier discussion of photographs and originality, the museum then exploits the new layer of copyright in the photograph of the Monet to manufacture and sell the umbrellas. Here again we are seeing the same questions arise: what is authentic or authorised? What does it mean to own art?
AS: Thanks Kez and Alana, it has been really fascinating to learn about the scope of copyright and its applications and limitations, particularly how institutions extend their control over ownership by preventing photography of specific artworks. It has also been interesting to consider the way Kez’s practice fits within a linage of artists working with appropriation and to place her contribution within the discourse.
Kez Hughes’ exhibition, Portraits remains current online during stage 4 restrictions in Melbourne at longallery.com