American Gothic

This little video involves a number of different IP issues. Firstly, there is the technology that goes into a camera phone, and the patents that protect it. We already take this for granted, but every aspect of the camera phone probably involves many patents, extending from those which covered the first development of integrated circuits (and these will have lapsed years ago), solid-state storage, image sensors, microprocessors, image processing, and, of course, the astonishing technology that makes mobile telephones not only possible, but an everyday item.

In 1930, when Grant Wood painted this much-reproduced and -parodied work, radio was commonplace, but the camera phone was unimaginable. Electronic imaging was in its infancy, with various inventors in the 1920’s having contributed the different elements necessary to create television, but it would be many years before a practical digital camera would be developed. The idea of a “personal communicator” was science fiction, and would remain so for decades. To capture the family group, as we have imagined, would have involved a much slower process, using silver-based light-sensitive film, chemicals to process it, and then further light-sensitive paper and another set of chemicals to produce an image that could be viewed. At the very best, the final image would not have been viewable for hours; now we see it instantly.

All these technologies have involved patents at every step, offering the inventors (or their employers) a chance of obtaining some commercial return for their investment in time and money. Since patents only last for a maximum of twenty years, new technologies soon become available for all to use, providing the foundations for the next developments.

Returning to the painting itself, the other IP issue is copyright. Copyright arises automatically when an original artistic or literary work is created. Copyright in an artistic work now lasts for 70 years from the death of the artist. Grant Wood died in 1942, so copyright will expire in 2012. This might mean that the painting can then be freely reproduced, except for one thing. It is currently held in the Art Institute of Chicago, and it is likely that photographic access is strictly controlled; certainly most museums and galleries do not allow photography. The reason for this is that photographs also enjoy copyright, even if they are photographs of a painting. It is assumed that photographing a painting is not just a mechanical reproduction process, but involves skill and judgment on the part of the photographer. The resulting photograph therefore has a new copyright term, expiring 70 years after the death of the photographer. So by restricting access to an artistic work which is out of copyright, and releasing only copies of “official” photographs of it in which they own the copyright, the museum or gallery can continue to earn money from sales of the image.

So does our film infringe copyright in the original painting, or in the photographs that we have seen of it (on the internet, or in books, for example)? We do not think so, because we have not reproduced the image, but have merely made an adaptation, which is a permitted act under Section 76 of the UK Copyright, Designs and Patents Act 1988. It is certainly not intended to detract from the original, but is instead an affectionate homage to an iconic work.

Our own video is copyright. This means that copies of it may not be made without our permission. In practice, since we would like this to be as widely circulated as possible, we are unlikely to object to copies being passed around, but we would be unhappy if those copies are altered in any way.

While we would like to have travelled to the actual place in the background of the painting, we could not afford to do so, so how did we include the buildings without infringing copyright in the photographs of it? The answer is that we contacted the current owners of the house, and they kindly agreed to supply a photograph and to allow its use in the video in return for a copy of the dress worn by the woman in the painting (they also provided us with the print design for the fabric, enabling us to obtain an accurate reproduction). Effectively, therefore, we have a licence under the copyright in the particular photograph of the building.

 

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