In late February-mid-March I was accused of copyright infringement. Anyone working in collage should be concerned, especially because I am using material in public domain.

In a climate where issues of sampling in the music industry and the unauthorized downloading of music and images from the internet is a serious problem, this sort of accusation is trouble-some. Most galleries, collectors, and museums do not want to be caught in the middle of copy-right problems, especially inasmuch as they could be liable. And most people are not likely to consult their attorneys over such issues unless the value and reputation of the work is great enough that the gains are greater than the risks: they are most likely to avoid any work that carries the baggage of “copyright infringement”: this is, I believe, the the explanation for the following.

I like www.epilogue.net. It is a good site, with what appears to be basically a good member-ship. I think that the issue of copyright infringement and collage is a difficult one if it is not thought through or if it is raised in anger, and one angry voice is all it takes to distract people from the facts. In the case below, it should be easy to make a reasonable determination without legal assistance.

On February 27, 2004, I uploaded, Plutus Contemplates Abundance, a digitally collaged image to www.epilogue.net. It was accepted and posted in their fantasy gallery and in my artist's gallery on that site.

Plutus Contemplates Abundance, © 2002 Walton Mendelson

Certainly in the case of Plutus, the individual pieces are obviously by Doré, although many images published in the 19th century are anonymous.

The major pieces for Plutus Contemplates Abundance come from"A Flight and Pursuit in Hell," "Plutus," "Marko Lombardo," "The Creation of Fish and Birds," "The Fire in the Forest," and "The Campfire of Atala and Chactas": no single Doré print could be confused for it. It should be obvious that my print is a collage.

On March 13, 2004, I upload another digitally collaged image, The Return of Arthur, to www.epilogue.net. I included the caption, “Like the others I’ve posted, a simple cut and paste digital collage.”

The Return of Arthur, © 2004 Walton Mendelson

The Return of Arthur was selected as “Editor’s Choice.” This elicited another comment from the same person: “‘Like the others I’ve posted, a simple cut and paste collage.’….So which part did you create…? Making this an Editor’s Choice is a slap in the face of every hard working artist on this site….So from now on we can just cut and paste from Michelangelo, Durer, Leonardo, Courbet and Rembrant, slap a copyright notice on and call it your own Work…!”

screen print of comments screen on www.epilogue.net

I noticed on March 15, which was the first time I looked through my gallery on www.epilogue.net since my first upload, that Plutus Contemplates Abundance had been removed. I checked the site’s “Submitted Files” status and it said: “Not Approved (copyright infringement).”

Screen print of status page on www.epilogue.net

I presume, but I do not know, that either a complaint was registered regarding the use of Gustave Doré's images in my collage, or that members of the staff read the comments, either way Epilogue responded: it was subsequently removed, with the comment “copyright infringement.”

Criticism is both fair and a matter of free speech. Copyright infringement is a crime. Accusing someone of a crime—taking an action that gives support to the accusation that a crime has in fact been committed—when it is not true, is defamation:

“Defamation . . . is an attack on the reputation of another person by print, writing, pictures or spoken words. The defamatory material must reach the public, since damage to reputation is a requirement for an action for defamation. While the truth of an alleged defamation would be a defense to such an action, the burden of proving truthfulness is on the person who asserts truth as a defense. Generally, everyone who participates in publishing or exhibiting defamatory material will be liable to the defamed person . . . . The artist must be aware of this important distinction between defamation and criticism. An artist who places work before the public invites criticism of the work. That criticism, no matter how hostile or fantastic or extravagant, is not by itself defamatory. However, if untrue statements are made disparaging the work or the artist is attacked personally in some way . . . the critic may have crossed the border into the area of defamation. ” (Legal Guide for the Visual Artist, Tad Crawford, Allworth Press, pages 75-76).

Any viewer, finding that this image had been removed following a posted comment suggesting copyright infringement, would lead to the obvious conclusion that the site concurred: this was copyright infringement, and their “Submitted Files” status confirms this.

What allows me to use the Doré is not a communication between Doré and me that Epilogue would have no reason to know about, but that the Doré pieces are in public domain.

It is reasonable to expect that people in the arts, running an online gallery of hundreds of artists would: 1) Recognize Doré's work and know his approximate dates; 2) Know about copyright, and specifically about visual art and copyright, derivative work, copyright duration, public domain, infringement, etc.; 3) Could easily check the relevant dates and laws to determine, without need of counsel, whether something like Plutus does or does not infringe someone's copyright.

For a derivative work, for example, not to be an infringement of someone else’s copyright: 1) the original work must be in public domain, or 2) the author of the new work must have permission from the copyright holder to use the original work, or 3) the original work must have been created by the new author. When a copyright expires a work is said to be in public domain. A work in public domain may be used by anyone without infringement, because there is no copyright; nor is there any obligation to site previous copyright information.

Most of the Doré’s pieces used in Plutus were published in 1861, and Doré died in 1883.

“The old U.S. Copyright Act (enacted in 1909) covers anything created before January 1, 1978. The maximum term of copyright protection for works published or registered before January 1, 1978, is 75 years. . . . So a work originally copyrighted in 1924, and properly renewed, would remain protected through the end of 1999. After 1999, that work would fall into the public domain” (The Copyright Permission and Libel Handbook, Lloyd J Jassin & Steven C. Schechter, John Wiley & Sons, pg. 18).

I notified Epilogue on 03.15.04 that while I recognize their right to accept or reject a work from their galleries:
1) Plutus had been accepted and posted.
2) It was removed following a complaint that the work was of someone else’s creation.
3) That they posted adjacent to that image the status of “Not accepted (copyright infringe-ment)."
4) The work in question was not an infringement because the original works are in public domain;
5) That to say my use of this material is an infringement is to accuse me of breaking the law;
6) Being falsely accused of breaking the law is defamatory.

I ended my website contact message—using their message window, not an email address because none was given—with: “I am clearly the new guy here, and I think that it is best that I not submit work to Epilogue again. I like Epilogue, and I have valued the exposure and the feedback, with this exception. However, this is not how people should be treated. I expect some kind of retraction and apology on the website. If there is another solution that comes to mind, please let me know.”

Although Epilogue has not responded, and regardless of whether they do or do not, that knowledgeable and experienced people in the art world can react to the use of public domain material as they have is disturbing.

I do not blame Epilogue, if assigning blame is important. I blame the collage community for not defining the current issues clearly enough. Some have proposed changes to the copyright laws, but absent them, to simply ignore the problem of infringement and plunge ahead is problematic. I also blame individual artists who do not understand the basics of copyright law and make false and defaming accusations. Dealers, galleries, musuems, and collectors would rather be safe than sorry. The easiest thing to do is to respond, as Epilogue has. It is unfortunate.

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