COPYCENSE

Interesting, the reaction to Google’s take on surrealist painter Joan Miro’s work. Since 2000, Google Webmaster Dennis Hwang has created original, interesting, and often memorable doodles that appear on the Google home page and incorporate the Google logo.

(In order to protect CopyCense from having to defend against a DMCA automatic takedown, the editors have chosen not to display the Google-Miro doodle or a snapshot of the Google homepage that includes the Google-Miro doodle.)

Last Thursday, Hwang (and we’ll presume it was Hwang) created a doodle to commemorate the anniversary of the 1893 birth of the Spanish painter. Neither Miro’s family nor the Artists Rights Society (ARS), an entity that controls the copyrights to many of Miro’s works, was not pleased, according to the San Jose Mercury News.

The family of Joan Miro was upset to discover elements of several works by the Spanish surrealist incorporated into Google’s logo. Google has since taken the logo off its site.

The Artists Rights Society, a group that represents the Miro family and more than 40,000 visual artists and their estates, had asked Google to remove the image early this morning.

“There are underlying copyrights to the works of Miro, and they are putting it up without having the rights,” said Theodore Feder, president of Artists Rights Society.

In a written statement to the Mercury News, Google said that it would honor the request but that it did not believe its logo was a copyright violation.

It is possible that ARS was concerned about the way in which the doodle portrayed Miro’s work, and in the art world, portrayal and context both are important. Many industrialized countries outside the United States address the presentation and portrayal of visual work through a concept called moral rights. The main purpose of moral rights legislation is to protect the integrity and reputation of visual art by and for the work’s creator.

U.S. copyright law includes analogous legislation, called the Visual Artists Rights Act (“VARA”). Passed in 1990, VARA allows the creator of visual art (including paintings, drawings, prints, photographs or sculptures produced in limited quantities) from having his work mutilated or defaced, or being associated with works that are not entirely his. Under VARA, which is codified in the Act at Section 106A, creators of visual art receive these special rights in addition to all the usual rights the Act affords to copyright owners under Section 106.

Fair use is the only exception to moral rights under VARA. (In contrast, the six rights in Section 106 may be limited by any number of limitations or exceptions that are codified in Sections 107 through 122 of the Act.)

I have heard Miro’s name before, but I concede I was not aware of his work in any, way, shape, or form before Google posted the doodle last week. It is possible that there are several others who were unfamiliar with Miro’s work before Hwang created the doodle. If so, then ARS may have committed a sizable business error in having Google pull down the doodle: the doodle, which linked to a Google search on Joan Miro, may have spurred many to learn more about the artist. This increased recognition may have led to greater interest in Miro’s art, and in turn, higher prices for Miro’s originals and prints.

Further, Feder’s comments conveniently eliminate the possibility that Google and Hwang may have been able to create the doodle pursuant to fair use under Section 107 of the Copyright Act. Since ARS does business in New York City, the entity is subject to the copyright laws of this country, including, but not limited to, the fair use provisions.

In the MercuryNews.com piece, Feder said “the society receives hundreds of requests each day from media organizations who are interested in reproducing a copyrighted work in some form. He said the authorization process is simple: all Google needed to do was send an e-mail asking permission to use the images.”

Fortunately, the viability of fair use does not depend upon receiving permission from the copyright owner or its agent. Nowhere in Section 107 does Congress establish requesting or receiving permission as a condition precedent to fair use. In fact, the whole point of fair use (in addition to many other of the copyright limitations found in Sections 107 through 122) is to be able to use protected works without having to ask for, wait to receive, or receive permission from the copyright owner or its agent.

Of course, copyright owners will not tell you that because it’s not in their interest to do so. Also, they probably don’t tell you that information because they are ignorant about copyright law themselves.

Elise Ackerman. Artist’s Family Asks Google to Take Down ‘Painted’ Logo. MercuryNews.com. April 20, 2006.

See also:

The Patry Copyright Blog. How Copyright is Getting a Bad Name. April 25, 2006.

The Trademark Blog. Google’s Commemorative Logos. April 24, 2006.

CopyCense™: K. Matthew Dames on the law, business, and technology of digital content. A business venture of Seso Digital LLC. CopyCense™ and CommuniK.™ are trademarks of Seso Digital LLC.