Artistic Licensing

Picasso is coming. Picasso is coming, and not only in the form of the 121 artworks that will go on display next Sunday, when “Picasso: Masterworks From the Museum of Modern Art” opens at the Los Angeles County Museum of Art.

A photograph of the artist will appear on street banners designed to grab the attention of passersby and lure them to the museum. A Picasso painting, “Girl Before a Mirror,” is the centerpiece of newspaper advertisements that advise readers to buy advance tickets, so that they won’t miss “this extraordinary exhibition.” Images of six Picassos in the show are in press kits and educational packets, to help reporters and teachers spread the word even further.

Once the exhibition opens, visitors will find illustrated brochures that help them interpret the paintings, drawings, sculptures, collages and prints on view in the galleries. Naturally, the gift shop at the end of the exhibition will offer a bonanza of Picasso products. The artist’s signature will decorate T-shirts, tote bags and pencils. Reproductions of his artworks will appear on posters, prints, note cards, calendars, journals, neckties, coffee mugs, dinner plates and vases.

Did we forget anything?

Ah, yes, Picasso magnets, the kind you stick on your refrigerator door.

The Picasso blitz is to be expected. Staging a big-name art show without a marketing strategy--driven by distinctive images and designed to bring in crowds, educate visitors and encourage them to buy a themed gift, souvenir or book--is about as likely as releasing a major film without an advertising campaign. Indeed, LACMA probably would be criticized for neglecting its fiduciary duty if it missed an opportunity to recoup costs of the $1-million show and cash in on the 20th century’s most acclaimed artist.

But if plastering reproductions of artworks on everything from billboards to ceramic teapots has become the standard way of promoting crowd-pleasing exhibitions, the process of putting those images out in the world remains enormously complicated.

At the heart of the matter is a regulatory system concerning artists’ copyrights--designed to prevent the piracy of artistic creations by requiring special permission to reproduce them. That sounds simple enough, but it’s murky territory. Some artists’ estates, such as Picasso’s, are very sophisticated and vigilant about protecting their interests, while others do little to guard against illicit use.

Furthermore, the law allows for wide differences of interpretation, even within the museum field. Among other disputed issues, museum attorneys disagree on what constitutes “fair use” of an artwork--that is, use of a copyrighted artwork that doesn’t require obtaining permission or paying a fee.

“We all spend a lot of time screaming at each other about this,” said Stephen E. Weil, an attorney known as the museum profession’s leading theorist. Formerly deputy director of the Hirshhorn Museum and Sculpture Garden in Washington, he is currently emeritus senior scholar at the Smithsonian Institution’s Center for Museum Studies.

Part of the reason for disagreements and misunderstandings is that copyright law is “complex and technical,” said Deborah Kanter, general counsel at the Los Angeles County Museum of Art. “It’s difficult to simplify the issues.”

Although it is often assumed that museums and other owners of artworks also own the copyrights, that is rarely the case. Artists generally retain copyrights to their work until death. Then their estates take over for a period of time that varies according to national law.

In Europe, copyright protection extends until 70 years after the artist’s death, said Theodore H. Feder, president of Artists Rights Society in New York, a 12-year old organization that represents the estates of both European and American artists.

American law is much more complicated and fraught with exceptions. Although it has changed over time, the American system has always been less protective of artists than European law, Feder said. Since 1978, when a new copyright law went into effect, American copyright protection has extended to the artist and the artist’s heirs for the duration of the artist’s life plus 50 years.

Obtaining permission to reproduce a copyrighted artwork generally entails paying a fee that is determined by the use. At Artists Rights Society, which collects fees on behalf of artists’ estates, charges range from $25 for a black-and-white reproduction in a scholarly book with a small print-run and limited distribution to $50,000 for a three-minute worldwide television commercial. Producing a commercial item bearing a copyrighted image usually requires paying a royalty, or a percentage of the selling price.

In the case of the upcoming Picasso show, the Museum of Modern Art owns all the works, but copyrights are held by the artist’s estate. The estate is represented by Artists Rights Society, which serves as a clearinghouse for rights and permissions of most prominent 20th century artists, and protects its members against unauthorized reproductions by monitoring the use of their work.

In the process of organizing the exhibition--which traveled to the High Museum in Atlanta and to the National Gallery of Canada in Ottawa before coming to Los Angeles--MOMA got clearance on six paintings for reproduction in promotional and educational materials at all the venues. The paintings--”Two Nudes” (1906), “Girl With a Mandolin” (1910), “The Guitar” (1919), “Three Musicians” (1921), “The Studio” (1928) and “Girl Before a Mirror” (1932)--were selected to represent a broad sweep of the artist’s evolution and to reflect the spirit of the exhibition, Kanter said.

If LACMA had stuck with the package deal, no further permission would have been needed. And for the most part, that’s what happened. But permission was contingent upon reproducing the approved works as complete images, without cropping. The street banners are two-part flags, divided by a central pole. “Girl Before a Mirror,” the key image chosen to promote the exhibition in Los Angeles, features two figures and seemed to lend itself to the split format. But the Museum of Modern Art objected to dividing the image. Instead, the two institutions came up with a workable alternative: a photograph of Picasso in MOMA’s collection that is considered a document, not an artwork.

When it came to commercial items, LACMA was on its own. The museum shop has purchased most of its Picasso stock from the Museum of Modern Art and other sources whose products are approved by Artists Rights Society. But the shop also wanted to produce T-shirts, tote bags and pencils using Picasso’s signature as a decorative motif. Even Picasso’s signature is copyrighted, so the museum had to get permission from Artists Rights Society.

And therein lay another complication. Instead of simply negotiating an agreement and fee for the desired Picasso products, Artists Rights Society used its leverage to ask the museum to enter into a comprehensive agreement for Picasso. Such arrangements, commonly made with museums, apply to an artist’s entire body of copyrighted work for a specified period of time, usually as long as the copyright is in effect.

“The agreement says we can reproduce Picasso works in connection with certain scholarly articles, other things that are normal fair use, plus some in-house brochures and newsletters without going to Artists Rights Society or paying any royalty. So that’s a gain,” Kanter said.

“The agreement also sets fees for reproductions in catalogs and for shop products, although all of that is negotiable. It sets a fee that says ‘unless otherwise agreed,’ so it doesn’t mean a whole lot in a legal sense. But it’s symbolic,” she said.

“What it symbolizes to Artists Rights Society is that we are committed to doing the right thing, to making sure that we clear our use of Picasso works properly, and it formalizes that agreement.”

Feder said that American museums have come a long way from the days when their officials frequently claimed that they owned copyrights to everything in their collections. Comprehensive agreements, an example of the trend, are increasingly common because they are “efficient for both sides,” he said.

Growing awareness of copyright law has also encouraged compliance, but the society still spends about half its resources policing illicit uses of artwork. “The situation is definitely improving,” Feder said. “It started out as a barrel of worms. Now it’s more like a sizable can of worms.”

Still, there’s little agreement as to whether the point of view promoted by Artists Rights Society--and the pattern followed by the Picasso show--is in the best interests of museums or the public.

“There are two basic views of fair use,” Weil said. “One, and it is far more the European view, is that fair use is an exception and a very grudgingly given exception to the artist’s monopoly rights over his or her work. It exists in the United States almost because you couldn’t have a 1st Amendment saying that people are free to express themselves and then have such a strict copyright law that people couldn’t express themselves by using other people’s words and images.”

This is not the view held by Weil, who calls himself “an extremist” on the other side. “I’m an extremist in thinking that fair use for museums ought be a very, very broad use. The reason is that they are basically educational, not in competition with the artist in any way. They are certainly not in competition with the artist’s ability to sell.

“The fair use statute has a built-in limitation. Use for purposes such as criticism, comment, news reporting, teaching--including multiple copies for classroom use--scholarship or research is not an infringement of copyright,” he said.

“It’s pretty hard to see where a T-shirt or a coffee mug fits into the above. On the other hand, it’s very clear to me--although it isn’t clear to everybody else--that a museum catalog should fit.

“One of the major tests is the impact on the market for the copyrighted work, and I would argue that a museum catalog reproduction in no way impinges or even affects the market for the work which it reproduces. The artists will argue back, and say, ‘Ah, but there is another market, which is the market for reproduction rights.’ . . . And then it’s a balancing act, as to which you think is more important.”

In practice, artists eagerly give away reproductions of their work when they are struggling for recognition, only to restrict access when reproductions are in demand.

Royalties are a source of income to artists and their estates, but both sides of the fair-use argument say money is not the crux of the issue.

The estates represented by Artists Rights Society are more interested in protecting the integrity of the art than reaping profits, Feder said.

Museums also collect fees for selling rights to publish copyrighted photographs of works in their collections, but that’s not a big issue either, Weil said. “It’s a source of income; it’s not a huge source of income. A lot of this gets blown out of proportion, I think, on matters of principle.”

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“Picasso: Masterworks From the Museum of Modern Art” opens next Sunday and continues through Jan. 4. Los Angeles County Museum of Art, 5905 Wilshire Blvd., [323] 857-6000. Mondays, Tuesdays, Thursdays, noon-8 p.m.; Fridays, noon-9 p.m.; Saturdays and Sundays, 11 a.m.-8 p.m. Special tickets are required for this exhibition. Call Ticketmaster for information: (323) 462-ARTS.