August 25, 2006
Art and Property
Today's New York Times carries a review of a new exhibit of Walker Evans photographs, Walker Evans. Or is It?, that raises some interesting questions about the nature of intellectual property. (The reviewer's focus is on the questions raised about the nature of photography; I merely extend the inquiry a bit here.) Some of Walker's prints from the 1930s that are in the public domain were digitally scanned and printed in an enlarged format, now on display until November 17 at the UBS Art Gallery on Sixth Ave. in New York. The result, as the reviewer tells us, are images that are "seductive and luxurious -- velvety, full of rich detail, poster-size in a few cases and generally cinematic." Because they are unlike the smaller-format silver gelatin prints that Evans made "the pictures are read differently, more piecemeal, in a way that film in a theater is viewed differently from an image on television or on a computer screen." From an artistic standpoint, the reviewer wonders whether photography is closer to music and theater, where each performance is an interpretation of an original score or text, or painting, where there is but one object, and copies are fraudulent. From a property perspective, what is the property that inheres in a photographic image? The economic rights are fairly obvious. I'm more interested in what the civil law terms the moral rights of artists. Of course, the artist can control this by retaining the copyright, and because these Evans prints are in the public domain there is no issue of whether Evans's economic property rights have been violated. That raises the Visual Artists Rights Act of 1990, which brings into federal law a portion of the civil law notion of moral rights of artists, and provides at 17 U.S. C. 106A (a)(3)(A) that a visual artist has the right "to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation . . . ." From viewing the photos on display in today's Times, in my humble view, the digitial prints surely don't violate this statute. But what of the larger, more philosophical, point? What does a photographer own? Is a photographic image more like a painting or a musical score?
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