27/09/2012
SY2009-2010 3rd Trimester
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Macahiya, Jayson: The Legal Dynamics Relevant to Public Art in the Philippines

When artists make art, they shouldn’t question whether it is permissible to do one thing or another – Sol LeWitt

Introduction:

There are many publicly artistic works that we can see in our daily lives. Public art as imagined by every other person can be every other thing that can be seen installed in a public place whether it be a huge sculpture or a decoration within a building. These works are in a way protected by law by way of a copyright.

The enactment of the Philippine Copyright Law as part of R.A. 8293 or The Intellectual Property Code of the Philippines is partly based from United States law and the principles of Berne Convention. With that, jurisprudence from the United States plays a significant role in the interpretation of domestic cases involving the said law. Copyright is a very serious issue in the field of visual arts and is one that everyone involved should take responsibility for.

Philippine Copyright Law also protect Patents, Trademarks and other forms of Intellectual Property. There are also other laws that protect copyrights such as the Optical Media Act which protects music, movies, computer programs and video games. The law is enforced through a body established by the law: Intellectual Property Office or IPO and its various branches. Copyright implementation is done with coordination with the IPO and the copyright division of the National Library of the Philippines.

The Intellectual Property Code classifies works that may be copyrighted into seventeen (17) classes that includes: Literature (books, pamphlets, etc.); Periodicals (newspapers, tabloids, magazines, etc.); Public speeches and other public speaking works (speeches, lectures, sermons, etc.); Letters; Television or movie scripts, choreography and entertainment in shows; Musical works (lyrics, songs, song arrangements, etc.); Art products (drawings, paintings, sculptures, etc.); Ornamental designs and other forms of applied art (not necessarily industrial desigs); Geographical, topographical, architectural and scientific works (maps, charts, plans, etc.); Scientific and technical drawings; Photographs and cinematographic works made in a process similar to photography; Audio visual works and cinematographic works made in a process similar to making audio visual works; Pictures used in advertising (includes logos); Computer programs; Other works not covered in the previous classes of a literary, scholarly, scientific or artistic nature; Sound recordings and Broadcasts.

Copyright Infringement

Copyright infringement or also called as copyright violation is defined as the unauthorized or prohibited use of works covered by copyright law in a way that violates one of the copyright owner’s exclusive rights such as the right to reproduce or perform the copyrighted work or to make derivative works. In the United States one of the important exceptions is the non-recognition of moral right in Article 6 of the Berne Convention. Moral rights enable a copyright holder to object to any distortion, mutilation or other modification of or other derogatory action in relation to the said work which would be prejudicial to his honor or reputation.

Under the United States system with regard to infringement suit, the law requires a copyright holder to establish ownership of a valid copyright and the copying of constituent elements of the work that are original. The holder must then establish both the actual copying and improper appropriation of the work. The plaintiff has the burden to establish three elements for prima facie case infringement namely: Ownership of a copyright, Actual copying and misappropriation. On the other hand, a defendant may rebut the presumption of copying by a showing of independent creation. In this scenario, if it can be proved that access is not established, then there is no copying even if there is striking similarity between the two works because it is possible to create a work independently while having similarities to another. There is one important defense to copyright infringement and that is the Fair Use which shall be explained later.

Dance Steps on Broadway Sculpture Case

Seattle based photographer Mike Hipple received in February 2008 a letter from the lawyers of sculptor Jack Mackie that one of his stock photographs infringed upon Mackie’s copyright. “Dance Steps on Broadway” is one of the most photographed Seattle landmarks. It was built in 1979 after the city tore up Broadway to do some electrical work, the sculpture was pushed by Patricia Fuller, a city program manager interested in incorporating art with public infrastructure. Fuller commissioned sculptor Jack Mackie to produce the steps. Now, Mackie is suing a local photographer for taking a photograph of the installation. Mike Hipple took a photograph of a woman dancing on Broadway. Some of Mackie’s “dance steps” are visible in the photo. Jack Mackie and his lawyers sent Mike Hipple a letter claiming that the photo infringed on his copyright. Hipple’s stock photography company permanently removed the image from their banks after receiving the demand letter, and assumed that would be the end of it.

Even though the photo showed only a small portion of the sculpture, Mackie still sued Hipple for copyright infringement and claimed over $60,000 in damages over the photograph. In this case the subject is the photography of a public sidewalk that shows public art paid for by public funds. It would seem that such an image would be covered under fair use, the legal concept that allows a certain amount of reproduction of someone else’s work.

The Korean War Memorial Postage Stamp Case

There was also a case involving a US postage stamp which was based on a photograph of the United States’ Korean War Memorial in Washington D.C. In the case of Gaylord vs. US, the Postal Service decided to issue a 37 cent stamp depicting a portion of the Memorial. Congress enacted a legislation to erect a memorial wherein Gaylord was given the right to make. He received five copyright registrations listing him as the author. A photographer took photos of the Memorial for his father’s retirement gift. The photographer decided to sell the prints of his photographs wherein the Postal Service used it for their stamp distribution and paid him 1,500 dollars.

The lower court’s decision was for fair use to exist. It was transformative and different in nature therefore did not harm the commercial value of the original. It also found that the memorial constituted architecture and thus was not subject to the usual copyright protection. However, the Federal Circuit by a majority vote decision of 2-1 reversed the lower court’s decision stating it was not fair use and in fact not transformative. The purpose and character of the image on the postage stamp and the purpose and the image of the sculpture were identical. The new work must make some sort of criticism or commentary to fall under fair use which clearly the stamp and the photo on which it was based did not. In the fair use analysis, the use of the photo on a postage stamp was a commercial use even if the commercial entity involved is an agency of the government.

It is noteworthy to cite the dissenting opinion of one of the judges wherein he said that the depiction of the Korean War Veterans Memorial on the postage stamp is a “transformative work”. The image on the stamp has a new and different character from the sculpture at the memorial. Depicting a “surrealistic environment with snow and subdued lighting where the viewer is left unsure whether he is viewing a photograph of statutes or actual human beings. The photograph was further edited by the Postal Service to further amplify the stark effect of the snowy image. A transformative work is generally deemed a fair use of a copyrighted work. The finding of fair use establishes the right of the United States to use the picture of the Memorial on a United States postage stamp without liability of copyright infringement.

Christ The Redeemer Statue in Rio De Janeiro

If you have watched the movie 2012 produced by Columbia Pictures, then this familiar to you. In the movie, it depicts the famous Statue of Jesus being destroyed. The Statue is considered as the largest Art Deco in the world. It was named as one of the new Seven Wonders of the World in a list compiled by Swiss-based The New Open World Corporation. The Catholic Church sued the producers of the Hollywood movie 2012 for destroying the Jesus Statute in the film. The Archdiocese claims to hold the copyright over the Statue. Also under the law in Brazil, it allows copyright sculpture for life plus seventy (70) years. The sculptor, Paul Maximilien Landowski died on March 27, 1961 therefore within the subject of copyright. Accordingly, there was copyright infringement in that movie because it depicts the famous statute of Jesus being destroyed and it was made without the archdiocese consent. They did not grant permission saying they did not like the idea of seeing the statute destroyed. However, the film producers managed to get permission from the estate of the sculptor, and not from the Archdiocese.

Monuments in the Philippines:

Some of the famous artworks in public spaces in the Philippines are the following:

EDSA People Power Monument in Quezon City by Eduardo Castrillo; Quezon Memorial Circle located at Elliptical Road Quezon City and designed by Filipino Architect Federico Ilustre; UP Oblation of the University of the Philippines which is a masterpiece of National Artist Guillermo Tolentino; Andres Bonifacio Monument in Caloocan also by Guillermo Tolentino; Cultural Center of the Philippines located at Roxas Boulevard by National Artist Leandro Locsin; Manila Metropolitan Theater by the distinguished Filipino Architect Juan M. de Guzman Arellano; The Transfiguration located at Aternal Memorial Garden Park Auezon City by National Artist and Father of Modern Philippine Sculpture Napoleon Abueva; Pinaglabanan Shrine located in San Juan Metro Manila which was a major work of art by Filipino Sculptor Eduardo Castrillo; Bulwagang Katipunan in Manila City Hall by Carlos “Botong” Francisco; and the Carriedo Fountain in Sta. Cruz Manila by Napoleon Abueva. These monuments and sculptures are not only famous but are also created and made by renowned artists in their own fields as well as it timelessly showcase the Philippine history and culture.

Majority of these monuments still have existing copyright protection. However, here in the Philippines there is no reported copyright infringement case yet involving the same issues involved in the abovementioned cases. Maybe one of the reasons is that the copyright owner would not bother to file a case since there is not much injury or effect on the potential market. Depending upon the future foreign jurisprudence, it can have an effect on our appreciation on public art copyright infringement.

Discussion / Analysis:

There is a provision under the law on the limitations to the rights of the copyright. One of which is the concept of fair use. It is provided under Section 185 of the Intellectual Property Code that:

Sec. 185. Fair Use of a Copyrighted Work. –

185.1. The fair use of a copyrighted work for criticism, comment, news reporting, teaching including multiple copies for classroom use, scholarship, research, and similar purposes is not an infringement of copyright. Decompilation, which is understood here to be the reproduction of the code and translation of the forms of the computer program to achieve the inter-operability of an independently created computer program with other programs may also constitute fair use. In determining whether the use made of a work in any particular case is fair use, the factors to be considered shall include:

(a) The purpose and character of the use, including whether such use is of a commercial nature or is for non-profit education purposes;

(b) The nature of the copyrighted work;

(c) The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(d) The effect of the use upon the potential market for or value of the copyrighted work.

Fair Use is a judicial doctrine that refers to a use of copyrighted material that does not infringe or violate the exclusive rights of the copyright holder. Fair Use is an important and well established limitation on the exclusive right of the copyright owners. It is an affirmative defense but its application varies greatly on facts and circumstances of the case. It is a privilege given to persons other than the owner of the copyright, to use the copyrighted material in a reasonable manner without his consent notwithstanding the monopoly granted to the owner by the copyright. It is meant to balance the monopolies enjoyed by the copyright owner with the interests of the public and of society. The Court applies the four part balancing test mentioned under the above quoted provision.

The Court ruled that a non-commercial use is not fair use when it has substantial market effect. Where there is small case impact courts are more receptive to arguments regarding the effect on the copyright owner’s market or potential market.

According to the book of Father Ranhilio Callangan Aquino in Intellectual Property Law, 2003 edition, he cited a Canadian authority that proposes factors to consider in determining whether there is infringement or not. The five questions are:

  1. Is the part taken distinctive, something on which the first author spent much skill, effort or ingenuity?
  2. Does the author merit the degree of protection sought, to her and other producers to produce works of that sort? Would takings like this impair incentive?
  3. Has the claimant’s present or future ability to exploit her work been substantially affected?
  4. Is the user unfairly enriching himself at the author’s expense?
  5. Do the two works compete for much of the same market?

In the case of Dance Steps on Broadway Sculpture, the implications of Jack Mackie’s claim are somewhat not appropriate. The idea that he is owed compensation for anyone who takes a picture of his work would put virtually anyone with a camera at risk of suit. If for example you took a picture of yourself or recorded a video while dancing or doing something on the sculpture and uploaded it on youtube or social networking site, does that mean you are already infringing copyright? Therefore with that situation the copyright holder can now sue you?

In the case of Gaylord versus United States, I think that the two works (Korean War Veterans Memorial sculpture and the photograph on the stamp) are different. The presence of the snow during the time it was photographed changed its character. Although this case is not yet final because it can still be appealed and most probably it was appealed and it is also a foreign decision, it can be a precedent of future filing of cases that are similar in nature. In effect taking of photographs of a publicly visible art without the owner’s consent may be a basis of copyright infringement if we will follow the ruling. In such a case, the concept of fair use is not applicable. If that ruling will be applied in our country in a strict sense, there will be problems to encounter. It may have a big impact on the economic viability of public art. For example, if I will take photographs of a public art, there will be hesitations to do that without the consent of the author/sculptor because later on I may be prosecuted for copyright infringement.

With regard to the Christ the Redeemer Statue in Rio de Janeiro Brazil, the reason why even if the Archdiocese denied the application to use the Statue in the movie the producers nevertheless still included it in the movie is perhaps the amount of money for the settlement would just be included in the cost of the production. Include to that the possible increase in their gross receipts or revenue because of the added curiosity by the public. With the precedence of this kind of lawsuit, it may give rise to an idea by certain countries. They can pass a law requiring producers of films or television shows to obtain permission from them with regard to depicting their national treasures or structures of national significance. Well, that is of course in exchange for some money.

In our present times of technological advancement wherein there are lots of modern gadgets being used, people should be free to take pictures of them together with a public art. It is easy nowadays to take pictures of public art and share it to the public in an instant through the use of the internet. We also have the capability to edit and enhance such pictures to our satisfaction. If the rulings in the cited cases will be in favour of copyright infringement, then if a person photographs things that are subject or covered by copyright, he may be infringing. If a director includes the picture or video of a public art with subsisting copyright protection as part of a film without prior consent, he may be liable. With that, it will pose a great effect in the industry of art.

References:

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