It has always been possible to copy a work of
art. For millennia, the right to produce and use images of theworks of others for religious, political, commercial, or decorative
purposes was rarely challenged. The advent of copyrightrestrictions on images coincides with the invention of the
technologies that made faster, more economical reproduction of thempossible—the printing press and efficient papermaking—and with the
early capitalist transformation of European cities that spurredthose technologies. As soon as multiple printmaking techniques were
cost-effective, artists began to challenge unauthorized printcopies of their inventions on commercial grounds, and thus generate
case law that would lead to the codification of copyright in worksof art and images. Causes célèbres in the history of the
copyrighted work of art include Albrecht Dürer's partly successful
challenge to Marcantonio Raimondi's bootlegging of his prints,Claude Lorrain's effort to protect his compositions against forgery
by recording them in drawings in a
Liber Veritatis , Peter Paul
Rubens's elaborate privilege applications, and William Hogarth'slobbying for the first English Copyright Act, passed by Parliament
in 1735.
David Landau and Peter Parshall,
The
Renaissance Print , 1470-1550 (New Haven: Yale University Press,
1994); Rebecca Zorach and Elizabeth Rodini,
Paper Museums: The
Reproductive Print in Europe , 1500-1800 (exh. cat., Chicago: David
and Alfred Smart Museum of Art, University of Chicago,2005).
The current difficulties faced by scholars and their
publishers in obtaining—and paying for—copyright permissions stand
in this tradition of artists' assertions over the potentialcommercial value of their creative endeavors.
The following discussion of the current state
of copyright practice is limited to copyright in works of visualart and architecture and in images that reproduce them.
The following discussion of copyright is
greatly indebted to the information provided by the United StatesCopyright Office at
(External Link) and to discussions with Susan M.
Bielstein, Carol Mandel, James Neal, and Eve Sinaiko. The bestsurvey of the topic is Susan M. Bielstein,
Permissions, A Survival
Guide: Blunt Talk about Art as Intellectual Property (Chicago and
London: University of Chicago Press, 2006).
It is worth noting that the temporal
extension of copyright in artistic works for two or threegenerations of heirs stands in marked contrast to the more limited
span of patents. Patent duration remains commensurate with theoriginal goal of intellectual property law, which was to encourage
inventors to continue to develop productive inventions while theyenjoyed protection of their initial ideas for a reasonable
period.
The Digital Millennium Copyright Act, also passed in
1998, offers further protections of copyright holders in thedigital realm.
There is, however, growing recognition in
the U.S. Congress that copyright law may in certain circumstanceshave an excessively discouraging effect on the use of copyrighted
material for productive and creative purposes. In 2005, SenatorsOrrin Hatch and Patrick Leahy, Chairman and Member of the
Subcommittee on Intellectual Property of the Senate JudiciaryCommittee, requested that the U.S. Copyright Office conduct an
inquiry into the problem of "orphan works," works known or believedto be in copyright whose owners or representatives cannot be
located even after diligent effort. The Copyright Office submittedits
Report on Orphan Works on January 31, 2006. The full report is
available at
(External Link) . The
detailed contents of the Copyright Office report go beyond thescope of this study, but it should be noted that its
recommendations advocate the facilitation of the reasonable use oforphan works, propose measures of copyright liability protection
for users of orphan works, and place limitations on monetary andinjunctive relief for copyright claimants who appear after use has
begun.
