ON COPYRIGHT
by jared travnicek February 23, 2012
fortnightjournal.com
A woman walks up to Picasso.
 
“I love your work,” she says. “Could I get your autograph?” He agrees, and signs her book. Then the woman asks, “Would you mind doing a sketch in my notebook?” Picasso takes the notebook and makes a beautiful sketch of the landscape in less than a minute. The woman thanks Picasso, and just as she turns to walk away, he says, “Lady – That will be a million dollars.” The woman is stunned.
 
“But it only took you thirty seconds to draw,” she says. “Yes,” remarks Picasso, “but it took me thirty years to be able to draw that in thirty seconds.”
 
From Napster1 and the Digital Millennium Copyright Act2, to the Harry Potter Lexicon3 and Shepard Fairey’s “Hope” poster4, major infringement cases have made copyrights part of everyday conversation. As a visual artist, I deal with the copyrights both at the Neurosurgical Atlas and the freelance medical illustration business I run on the side. Though the waters of copyright law are deep, I hope that sharing my efforts and experiences will grant a new appreciation for all content creators in a time when free access to these forms of creative expression has never been easier.
 
In 1783, a law passed by United States Congress recommended that each of the thirteen states enact its own copyright law. All but Delaware did. The first federal copyright mandate was the Copyright Act of 1790, which only protected books and navigational charts. Engravings, photographs, negatives, painting, drawing and sculpture were added in the following years, culminating in the Copyright Act of 1909, which protected all works of art.
 
There are eight categories of recognized authorship: pictorial, graphic, sculptural, motion picture and other audiovisual work, literary works, musical works, pantomimes, choreographic works, sound recordings and architectural works.5
 
Let’s break down what U.S. law says about copyrights. Copyright, put simply, is the law of authorship.5 Once an idea has been put into some form of tangible medium, the work is automatically protected under U.S. copyright. Don’t be mistaken; the idea is not under copyright, just the tangible expression of it. This holds true outside of the U.S. as well through the Berne Convention for the Protection of Literary and Artistic Works6 and the Buenos Aires Convention.7 Copyright allows the creator to reproduce, make derivatives, distribute on terms the author sets and display the work publicly.
 
The usage rights granted to copyright owners include the exclusive right to reproduce their work, or to authorize others to reproduce their work. One limitation to these rights, however, is the doctrine of “fair use.” Certain types of usage without a copyright owner’s permission may be considered “fair” and would not constitute an infringement if they fall into certain categories, such as commentary; criticism; news reporting; teaching; scholarship; research or parody.

Generally speaking, usage of work considered to be “fair” must be limited and/or transformative in nature. The distinction between fair use and infringement is often ambiguous and not easily defined. The doctrine, which has evolved over the years through legislation and a substantial number of court decisions, is intentionally ambiguous—because, like the doctrine of free speech, the legislators who developed it and the judges who have interpreted it prefer it to have an expansive meaning, open to interpretation. 
 
Artists may not always understand the importance and value of their copyrights as well as publishers do. This is why publishers will often attempt torequire a full transfer of an artist’s copyright for a commissioned work. Demands for copyright transference are not new.
 
During the American Civil War, magazines like Harper’s Weekly and Frank Leslie’s Illustrated Newspaper used an underhanded trick to transfer the copyright away from the artist. During that time, the public wanted to see illustrated stories from the battlefield, so Frank Leslie’s sent artists out with notepads that stated “An actual sketch, made on the spot by one of the Special Artists of Frank Leslie’s Illustrated Newspaper. Mr. Leslie holds the copyright and reserves the exclusive right of publication.” Throughthis brilliant but duplicitous move, the publisher transferred the artists’ rights to their work as soon as the illustrations were published.
 
Howard Pyle, an illustrator who would come to be known as the “Father of American Illustration” was taken advantage of in the same way by using preprinted pads of paper from Harper & Brothers for his sketches. The date was even included, so all he needed to do was fill in the appropriate year.An artist named Coffay Yohn created illustrations of the Spanish-American War for Scribner’s Magazine, an organization that later converted his work into deluxe books and compendiums. This created great profits for publishers, but no further compensation was ever given to the artist.9
 
For an artist, retaining copyright not only allows a sustainable livelihood, but it also allows them to build their reputation by being associated with an uncompromised body of work.5 If an artist sells the copyright to their work, the new owner can add, subtract, or modify any aspect of that piece, potentially changing the message of the piece or corrupting the reputation of that artist. This can be especially harmful in medical illustration where anatomical accuracy and unique perspectives are vital and the illustrators’ reputation, which in turn hinges on that artists’ability to get more work.
 
Most of my work falls into the pictorial, graphic, or motion picture and other audiovisual work previously listed. As with many other professions, becoming proficient in and excelling at medical illustration takes time, dedication and hard work. In art, it can take many years for a person to develop a consistent and cohesive style. Hours are spent honing and fine-tuning these elements. Each completedpiece represents a series of decisions, made unique by the author. Medical artists have added hours invested in medical school courses such as anatomy, physiology, microbiology, pathology and histology.
 
To get to where I am today, it took four years of undergraduate education in Biological and Pre-Medical Illustration, two years working as a general illustrator, two years of graduate school in Medical and Biological Illustration and two and a half more years at my current job. Art is a life long pursuit. Even with the experience I have, there is still room to hone my skills.
 
In my current position, I work as a neurosurgical illustrator, which requires even more training—especially in the 3D spatial relationships of already-complex neuroanatomy. If I consider my current position in relation to the common 10,000 hour mastery rule, I am still two years away from proficiency in neurosurgical illustration. But in terms of art and illustration, I have easily surpassed the 10,000 hour mark and that gives value to all the work I do.
 
For all artists, there has never before been a time where global access to their work has been so easy and instantaneous. This can present tremendous opportunities for collaborations and commissions, but for an artist concerned withprotecting their copyrights, it can also be deeply problematic. Frequently, when art is shared, copied, or remixed, the piece is removed from context that might contain credit lines. Signatures may be removed or cropped out, and often the metadata is indiscriminately stripped by internet service providers or online aggregators.5 When someone try to search for those artists, unless they are well known, it will be nearly impossible to track them down.
 
The recent debate over copyrights in the forms of SOPA and PIPA have spurred heavy internet backlash. The issues in these bills are more nuanced than I think most people assume and my limited space here wouldn’t do them justice. Much of public vitriol is directed at large media companies (movie studios especially) and I don’t disagree with that criticism. That being said, SOPA and PIPA in general terms have the potential to positively affect me as a medical illustrator. I need to say right away that these bills cast far too wide a net and give content creators more power than I think is necessary. The potential for abuse causes me great concern. I see legislation such as SOPA and PIPA having possible negative ramifications in suppression of free speech, innovation on the web, and web-based economic opportunities. However, SOPA would provide me a wider channel of legal action against a website that is outside of the U.S. and using my content illegally.
 
I don’t know what the future of SOPA and PIPA are, but my hope (which may be more of a pipe dream) is that the bills are substantially reworked in a way that protects innovation and personal freedoms, but still affords me some action against those who use my work illegally. The Picasso anecdote is a bit extreme because of the level of fame of the artist, the time, and the money asked, but the underlying principle is relevant: It has taken a lifetime of learning for him to gain the skill necessary to do it so quickly. Just because something is done quickly or is easily accessed doesn’t mean it is valueless. This principle holds true over the internet as well; just because somethingcan viewed for free, does not mean it is free to download and manipulate. Ask permission before you use something, and give credit where credit is due. Someone potentially spent hours, days, or weeks creating their work and shouldn’t be shortchanged.


***

Jared Travnicek is a medical illustrator based in Indianapolis, Indiana. He holds a Master of Arts in Medical and Biological Illustration from the Johns Hopkins University School of Medicine, and a BA from Iowa State University in Biological and Pre-Medical Illustration. Jared is an award-winning member of the Association of Medical Illustrators. He currently works as a neurosurgical illustrator at Goodman Campbell Brain and Spine.

His previous pieces for Fortnight are biographical sketches of Max Brödel and Dorcas Paget, two pioneers of the field of Medical Illustration, The Future, an interview about the change in his field, and Street Anatomy, a conversation with Venessa Ruiz of the blog Street Anatomy. To view more of Jared's original illustrations, visit jtsciencevisuals.com.

 
 
 
1. http://en.wikipedia.org/wiki/A_&_M_Records,_Inc._v._Napster,_Inc.

2. http://en.wikipedia.org/wiki/Digital_Millennium_Copyright_Act

3. http://www.telegraph.co.uk/news/celebritynews/2707165/JK-Rowling-wins-copyright-battle-over-Harry-Potter-lexicon.html

4. http://www.ap.org/pages/about/pressreleases/pr_01122011a.html

5. Turner, Cynthia. “Perfect and Strengthen Your Copyrights.” Journal of Biocommunication. 36.1 (2010): E14-E26.

6.http://en.wikipedia.org/wiki/Berne_Convention_for_the_Protection_of_Literary_and_Artistic_Works

7. http://en.wikipedia.org/wiki/Buenos_Aires_Convention

8. http://www.copyright.gov/fls/fl102.html

9. Brown, Terrence. “Historic Rights in American Illustration.” Journal of Biocommunication. 36.1 (2010): E8-E13.