THESIS ABSTRACT 2004
Has the Evolution of U.S. Copyright Law Failed In its Mission to Encourage Creative Production?
The Sell-off of 20th Century Culture as Intellectual Property
In essence, copyright is the right of an author to control the reproduction of their intellectual creation after it has been disclosed to the public. The framers of the U.S. Constitution instructed Congress to develop a statute that would grant an incentive for authors and scientists to create and explore. The original intent of the law was to provide an exclusive right to copy, sell, or perform a work of original authorship that has been fixed in a tangible medium. It was, in effect, a monopoly on a creative work for a limited period of time, which was limited by a provision that allowed for use in good faith by journalists, students and scholars. It was the intent of the original framers that after the term of the copyright, the work would enter the “public domain” as common property of the reading public. These framers saw copyright as a means to enrich our culture by encouraging future production of creative works rather than as a reward for previous efforts.
The establishment of copyright statute was not a process without conflict. The use of early English copyright laws as a means of censorship by restricting political discussion was not lost on the founding fathers. The end result was a policy that balanced the interests of authors, publishers and readers. One must bear in mind, the original copyright law was based on the prevailing media of the time, printed material.
This thesis will examine the changing role of authorship and the changing dynamic of copyright in society as technological progress has outstripped the ability of the law to regulate it. The result has been a trend away from policy that acknowledges the value of the public domain as a way to enrich our culture toward a more restrictive perception of “ideas as property.” This limitation of the use of ideas results in an expression of hegemony and concentrated cultural (and economic) power. Since copyright only comes into play once a creative work is recorded in a permanent medium, cultures with an evolving oral history become the property of the one that records them. As the laws regulating copyright have become more complex, those able to afford legal counsel are more able to negotiate them.
Art history is a procession of creators standing on the shoulders of their predecessors. The Renaissance was in major part sparked by the discovery of classical art forms that far exceeded the reach of contemporary expression. Artists commonly appropriated and reused images of other artists in their work. The academy system of training artists has always included students learning by attempting to copy the works of the masters. In more recent times, appropriation has taken the form of the use of actual images from an identified source, such as mass media, in a use that changed the original meaning by the use of context. Authorship became a less concrete concept with the emergence of art as the result of “factory production.”
This thesis will also concern itself with practical applications of existing copyright law, how to use it to the advantage of the individual or arts organizations to protect their creative work, and how to avoid the legal pitfalls of appropriating and using the work of those who preceded them.
Jeffrey McMillian received a BA from the University of Texas at Austin in 1992 with a major in English and minors in Fine Art and History. He worked as a manager and Art Director of the Godbold Cultural Center in Lubbock, Texas. While in Chicago, he worked at the Hyde Park Art Center and interned with the City of Chicago Public Art Program.
Thesis Advisor: Michael Dorf Adjunct Professor, Arts Administration
Thesis Reader: Charles C. Valauskas Instructor, DePaul University College of Law