User-Generated Content and Artist Copyright

After my numerous posts on copyright issues tangentially related to Museums (Viacom, Google), I decided to contact the Artist Right Society for a better insight into digital copyright as it relates directly to artists, Museums and user-generated content sites. I spoke with the associate counsel for ARS in the New York Office, Ms. Adrienne_Fields, who gave me a great perspective on how copyright holders (and their representatives) view the trends of the information age.

Below are some snippets from our conversation:

• NM: What is the ARS’ position in relation to artist copyright material propagating on the Internet (especially user-generated content sites like YouTube, Flickr and MySpace)?
  
• Answer: Our response depends on the situation. We look for the uses that offend our members. We target specific types of [image] use rather than specific websites.
  
• NM: When you say specific types of use, what does this usually entail?
  
• Answer: Commercial uses mostly. Merchandise. Products. Sometimes a band will have an image of a licensed work on its cover or in its video and one of our members finds offense in its use. Sometimes a book cover will appropriate an image without contacting us first.
  
• NM: It sounds like there is a lot of investigation and analysis for every specific use.
  
• Answer: And, not all uses are infringing uses… we certainly have to be sensitive to fair use whenever we explore a member’s complaint.
  
• NM: With the different ways content is distributed on new user-generated websites, I imagine that makes the process even more complex. How can you measure the interests of private fair use, like education or research, when it is performed on for-profit platforms? Do you feel like the law is keeping pace?
  
• Answer: The law is fine. It is the facts that are always changing. Actually, most uses are covered by existing regulations and precedents, though we do monitor case law for new applications and extensions of these regulations.

So initially, it sounds like user-generated reproduction of artist material is a relatively minor issue for the society. From my conversation, I understood that they track and investigate complaints on an as-needed basis when prompted to do so by a member (i.e. an artist or estate). Mostly, these complaints seem to center on outright commercial uses rather than incidental reproduction - a la video phone Museum tour - and they have little interest in getting wrapped up in blanket cease-and-desist orders for entire websites.

This made me wonder about the recent case of Google and Agence France Press that has recently been in the media. Out of curiosity, I forwarded Ms. Fields a copy of the New York Times article discussing the case. As she explained it, the issue at stake was more a protection of private individual's "right to display" or "right to publicity", not the search engine's somehow inherent freedom to link.

And while it seems possible that an artist could file an ARS complaint for links from Google or images on MySpace, the stakes and damages seem incredibly small when compared to those of outright reproductions of a work.