In June of this year, the US Internet Archive ended its National Emergency Library programme, which provided free access to almost 1.5 million books. Before the pandemic, the Internet Archive had permitted access to scanned books, which could be checked out digitally, to its users, one user at a time, not unlike a bricks-and-mortar library.
But the emergency programme provided free access to anyone anywhere, without reader waitlists, and effectively substituted for a purchased copy, thereby eradicating the revenue stream for publishing houses and authors alike.
Publishers including Penguin Random House, Hachette Book Group, John Wiley & Sons, and HarperCollins filed a lawsuit against the Internet Archive on June 1 pointing out the programme’s disregard for copyright law, and the programme was, at least temporarily, ended.
In July, however, the Internet Archive filed a brief at the US District Court for the Southern District of New York, attempting to defend its programme without addressing its piratical nature: “Every book in the collection has already been published and most are out of print. Patrons can borrow and read entire volumes, to be sure, but that is what it means to check a book out from a library.
“As for its effect on the market: for the works in question, the books have already been bought and paid for by the libraries that own them.”
Visual arts
Rather than delve into the merits of the book publishers’ case, this article will look briefly at its sister industry: visual arts. While less high-profile in many cases, the rights of visual artists and the institutions that support them have also suffered from the pandemic’s prescription that the world stay home.
While millions of us have turned to online content to distract, entertain, and soothe ourselves, artists’ rights have not always been respected.
As early as April of this year, Nina Obuljen-Koržinek, minister of culture of Croatia, noted to an assembly at UNESCO that, within weeks of the pandemic’s spread: “The whole environment in which the artists have been creating and in which we have been putting in measures to support the arts has been fundamentally changed.”
” Will artists be more vigilant about trying to protect their work from unauthorised reproduction and dissemination?”
Molly Torsen Stech
Thelma Golden, the director and chief curator of the Studio Museum in Harlem, wrote in an email to Artnet News in September that “every cultural institution, at every scale in New York City, has been hit hard by COVID-19, each in its own way”.
Her institution has now announced its 2020–21 artist residencies, which will take place remotely instead of on site.
The Studio Museum’s associate curator for exhibitions, Legacy Russell, noted to The New York Times that “it’s a year to experiment” and ask ourselves what it looks like “to support artists right now”.
Four artists have been selected as residents: two photographers, an artist who works with paint and mixed media, and—in a new category for the museum’s programme which is so well-known for kickstarting the careers of new artists—a midcareer artist who works with software to reflect his conceptual work.
On September 10, blue chip gallery Hauser & Wirth announced its Artists for New York initiative, to raise money in support of a group of innovative non-profit visual arts organisations across New York City that have been deeply affected by the pandemic, such as the Dia Art Foundation, El Museo del Barrio, and The Swiss Institute.
The project brings together dozens of works by premier artists of all ages. The works will be sold to benefit these institutions, which are well-known for playing a significant role in shaping the city’s unique artistic environment.
In statement, Hauser & Wirth said: “Facing dire budget shortfalls for fiscal year 2020 caused by necessary and prolonged closures during the pandemic, and expecting further impact upon earned income and contributed revenue in the year ahead, the city’s small and mid-scale institutions are extremely vulnerable at this moment.”
The initiative underlines the severity of the situation for arts institutions and the philanthropy of New Yorkers.
Future concerns
Amy Lehman, director of legal services at New York’s Volunteer Lawyers for the Arts (VLANY) has echoed the general concern for artists and art institutions.
She also noted that the pandemic has had its most immediate effect on performing artists and the creative people who support them. Broadway actors, dancers, costume designers, and playwrights, for example, have no audiences to perform, dance, sew, or write for, and there is no way to predict whether and when that will change.
As far as the distinguishable copyright implications of the pandemic, it is less clear what they are and how they will play out, other than to note the deluge of content that is continuing to flood the internet.
Artists tend to create no matter their circumstances. Will the art created this year be primarily available online, more so than in recent years? If so, will artists be more vigilant about trying to protect their work from unauthorised reproduction and dissemination? Lehman predicts it will take some time before we have the answers to these and other questions.
”Galleries with an annual turnover of under $250,000 proved themselves most adept at expanding their client base.”
Art Basel
One silver lining is that VLANY’s series of programmes and workshops aimed at educating artists about legal and business issues, including copyright fair use, has seen an uptick in audience members now that they’re entirely online.
Lehman was happy to note that, contrary to years past, a large and geographically diverse group of artists has been registering for these classes, which she hopes will benefit artists in better organising the business and legal aspects of their careers.
Elsewhere, the pandemic’s impact demonstrates a mix of mild success and less mild devastation.
A statement by international art fair Art Basel noted that in 2020: “The art market has been turned upside down, with fairs cancelled and galleries forced to close temporarily, shuttering the main venues and events at which collectors were previously able to support gallerists and artists.”
Clare McAndrew, founder of Arts Economics and main author of “The Art Market 2020” report, found that sales in the gallery sector were down 36% in the first half of 2020, with most galleries ready for the downward trend to continue. Galleries of all sizes have had to lay off or furlough significant portions of their staffs.
McAndrew forecasts that 2020 could reveal “unprecedented resilience or permanent change to the landscape of the artworld as we know it”. Where an uptick has been documented, however, is in online sales.
As art fairs have been cancelling or postponing their 2020 events, some online sales have reportedly soared. Art Basel found that: “One unexpected benefit of galleries moving to sell online may be that, perhaps because collectors are even less tethered to geography, they are finding new buyers.
“Galleries with an annual turnover of under $250,000 proved themselves most adept at expanding their client base: more than a third (35%) of their online customers were new buyers, while higher-end galleries (with a turnover of more than $10 million) were only half as likely to recruit new customers.”
Will online viewing rooms continue to be as popular once the world finds some sense of normalcy? Like Lehman, I expect we’ll know a little more in about five years.
In the meantime, it is my personal hope that artists will spend some of this dormant time learning about the bundle of exclusive rights in copyright law that belongs to them as soon as their proverbial—or actual—brushes leave the canvas.
Molly Torsen Stech is an attorney advisor on copyright matters and author of “Artists’ Rights: A Guide to Copyright, Moral Rights and Other Legal Issues in the Visual Arts Sphere” (2015). She can be contacted at: mollystech@gmail.com
Image: Shutterstock.com / Vieriu Adrian
