"Where Credit is Due" page 2

For me, the most appealing aspect of Japanese haiga tradition is that haiga honors the poem. So it's not just the law but common courtesy to ask permission before publishing or otherwise showing the haiga in public. We all know to ask before including someone's haiku in our haiga, right? And we know that after an author's death, we still have to ask because ownership of that person's haiku passes to the heirs or estate for a certain number of years. Right? Eventually everything passes to public domain. So we don't have to track down the heirs of Basho, Buson and Issa to do an old master haiga, but the English translation we most likely want to use is almost certainly still under copyright protection. Ask we must, and by footnote or whatever works, credit the translator (a problem since most of the translations we like to use are not nearly old enough to be in public domain).

Images are similarly protected, although on social media you'd scarcely know it. Recently I saw someone post a haiga to her Facebook page that used an image she had, in her own words, "found on the web". When I questioned her, it developed that she'd right-clicked it from one of those beautiful photo-sharing sites that do not name the photographers, and thus presumed it to be there for the taking. Now, I often see my Facebook friends poem and share art that I know to be in museum collections, and Wikimedia Commons has a lot in its databases, with fine print about crediting the source but who reads that? Plus, appropriation of imagery, collage and even replication is an increasingly common way of art making that has been with us for millenia. So I understand the confusion—without necessarily excusing it.

It's a matter of ethics as well as law, and it's called "Fair Use": a "loophole" within copyright that provides exceptions to copyright for parody, educational purposes and, most importantly, transformation. Not that you'd want to use Leonardo da Vinci's "Mona Lisa" in a haiga, but the painting is so well-known and so often parodied or appropriated that it serves well as an example of public domain, derivation, transformation and educational use.

Leonardo da Vinci,
"Mona Lisa"
Paris,Musée du Louvre

Leonardo died in 1519. I would have thought that all rights to "Mona Lisa" belonged to the Louvre, which now owns it, but the painting is "in the public domain in the United States, and in those countries with a copyright term of life of the author plus 100 years or less" (Wikimedia Commons). According to Wikimedia, as a "faithful photographic reproduction" the photograph is not copyright protected either.

However, an artwork that alters the image in ways that transform the meaning or context may be copyrighted. Marcel Duchamp's postcard print with a mustache penned on it is supposedly in public domain in the US, but in its home country, France, is protected until 2039 (Wikipedia). I'll leave it to you to decide whether Andy Warhol's silkscreen print or Vik Muniz' copy of the Warhol in peanut butter and jelly qualify as transformations or parodies; the literature is vague on this point (Copyright Litigation Blog, June 11, 2010). Indisputably, though, Fernand Leger's version is transformational, and since Leger died in 1955, the painting is not yet in public domain.

That I have shown the others here without asking is because the images are hyperlinked thumbnails, rather like footnotes, and the purpose of this article is educational. If I wish to use Mona Lisa in my own art, the only safe thing would be to use Leonardo's version.

Marcel Duchamp,
"L.H.O.O.Q." (1919);
private collection, Paris

Fernand Leger,
"Joconde aux Clefs"(1930)
Biot, Musée Leger

Andy Warhol, "Double Mona Lisa (1963)

Vic Muniz, "Double Mona Lisa, After Warhol" (1999)

Sometimes common sense should rule in whether you include a citation or not. Mona Lisa is so well-known that you'd look foolish footnoting her. Similarly Renée Owen's Experimental haiga in our December 2010 issue are collages that combine material from mutiple sources and so change context and meaning that credits should not be necessary here, too. On the other hand, my sense is that Autumn Hall's photograph of a Nikki de Saint-Phalle sculpture in our June 2012 Haiga Challenge, and my own Challenge haiga in this current issue, should at least give artist's and/or collection name. Don't quote me on this, but I don't think that permission was necessary. Sculptures in public outdoor spaces have been placed there because curators want to engage passers-by. We're not using the images on mugs or T-shirts: Haigaonline is a non-commercial, digital publication, and we're not just reproducing but also poeming photographs that we ourselves have taken. As I understand it, permitting a free and creative exchange of ideas that respects all parties is the spirit and purpose of Fair Use.

Generally, though the advice of the US Copyright office is, when in doubt, ask for permission and respect the owner's decision. Whether or not permission is needed, if you're using someone else's artwork in your haiga—even a long-dead artist—list the credit. If possible, your viewers will also appreciate a hyperlink to that institution's website. Don't settle for linking to the website you found it on if that's a secondary source. Track down the owner and cite a primary source. If it is a case where permission is required, and the owner says no, please do honor that decision.

If at this point you're wondering what a photo credit would look like, I've put a few simple one just above, and there are two pages of examples in the photo credits of Anita Virgil's "Tomb Talk". Most of these photos were available under Creative Commons licensing, many through Wikimedia Commons. I urge you to explore the image databases on Wikimedia Commons for images that you can use without difficulty. As Anita found, there's a lot there.

Also, familiarize yourself with Fair Use, If you wondered at my use without asking of the above three copyrighted Mona Lisa parodies, this article is for educational purposes, isn't it? But for us as writers and artists, transformation is the most important exception because it stands astride the difference between the derivative and the truly creative. Salutary discussions of the meaning of these terms may be found at OSLA Arts & Law and at The Sloan Consortium.

Have you heard the saying, "Good artists borrow; great artists steal." An apocryphus that is generally attributed to Picasso, sometimes to Steve Jobs, it doesn't mean that if you're as big as Warhol you're above the law. In fact, it is a misquote of T. S. Eliot:

. . . Immature poets imitate; mature poets steal; bad poets deface what they take, and good poets make it into something better, or at least something different. The good poet welds his theft into a whole of feeling which is unique, utterly different than that from which it is torn. . .

The Sacred Wood, New York: Knopf, 1921


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