Marielena Rodas

“Art is a public good not private property”

Marielena Rodas

Marielena Rodas is a senior at Yale University studying Comparative Literature and French. She was born and raised in Berkeley, California. Marielena firmly believes it is the most special place on Earth — nothing can compare to the culture, food, and people. Marielena is proudly and unapologetically Guatemalan and Pakistani, and draws inspiration from both sides of her cultures and identities. She also admires nature, indigenous traditions, and the catholic imagination – all of which are featured in her latest installation. She engages in a lot of different art mediums, most notably her ‘miniaturas.’ To speak out against Guatemalan genocide, she has created a life size version of her ‘miniaturas’ where she sits front and center. In the future, she plans to delve deeper into her artistic soul whilst pursuing a law degree to help her communities.

Discussion Debrief

I sat down with Marielena to discuss her art, intellectual property as it relates to her, and answer any questions she may have. It turned into a discussion of what copyright ought to be, and what role law or economics should play in art. What was most salient to me about our discussion was that artists like Marielena, without prior knowledge about intellectual property rights, don’t know what they don’t know. The goal of my website is to help artists like her, to educate them so that they may be better informed and have the tools to take on intellectual property challenges in the future. Thus, the following discussion on intellectual property is tailored to Marielena, her experiences, and her art. It may be useful to small, indigenous, female, or POC artists. 

Marielena dabbles in many art mediums, most notably paint and ‘miniaturas’. Based on these mediums, the intellectual property tools most relevant to her are copyright, fair use, and moral rights. We started our conversation with a broad overview of what these topics are. 

Copyright was established through the ‘Copyright Clause’ in the Constitution, otherwise known as Article 1 Section 8 | Clause 8. It states that

“[The Congress shall have power] ‘To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries’”

fairuse.stanford.edu

This right includes the right to reproduce their work or create derivative works. Copyright protection, however, does not extend to ideas or processes, only the expression of those ideas. Because the ultimate goal of copyright is societal benefit – hence the ‘limited times’ part with copyright protection lasting for the length of the authors’ life plus 70 years – copyright law has evolved to protect secondary works when it is fair. This is known as the Fair Use doctrine. In 17 U.S.C. § 107,

“…the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.”

17 U.S.C. § 107

There are 4 factors to consider when determining Fair Use: the purpose and character of the secondary use (is it critical, educational, or for nonprofit use? Is it transformative?), the nature of the copyrighted work (is it unpublished?), the amount and substantiality (is the selection and quantity reasonable?), and effect on the market (does it hurt the market value of the original work?). Another important tool in an artist’s legal toolkit is moral rights through the VARA act. Under 17 U.S.C. § 106A (VARA), author’s have the exclusive right to

“to prevent any intentional distortion, mutilation, or other modification of that work which would be prejudicial to his or her honor or reputation, and any intentional distortion, mutilation, or modification of that work is a violation of that right, and to prevent any destruction of a work of recognized stature, and any intentional or grossly negligent destruction of that work is a violation of that right.”

17 U.S.C. § 106A

Idea/Expression Dichotomy

After this brief overview, we then talked about how these topics relate to her and her art, as well as her preliminary reactions. Marielena draws inspiration from the catholic imagination. To her, art is shared. Art is universal. She points out that there are many paintings of the Madonna and Child – it is a universal symbol available to all. Marielena is right, things like the Madonna and Child or crucifixion is a symbol, an idea. That is where the idea/expression dichotomy comes into play. Copyright protection doesn’t extend to ideas, only the expression of those ideas. Because of this, anyone is free to paint their version of the Madonna and Child, but copyright protection would only extend to the parts of the painting that are unique to the artist – the composition of the specific brushstrokes and such. Let’s put it this way, you have the right to make prints of your Madonna and Child painting or photos of it, but it is possible and likely that someone could make a similar painting. The more distinct your Madonna and Child painting, the higher the threshold for copyright protection. 

“In other words, the purpose or function of a utilitarian work would be the work’s idea, and everything that is not necessary to that purpose or function would be part of the expression of the idea. . . . “

Computer Associates International v. Altai

Useful Articles

Marielena is inspired by indigenous traditions and patterns. From her trips to Guatemala, she likes to incorporate some of the textiles, clothing – like huipils – she finds in the markets into her art. Marielena wondered if doing this could be considered copyright infringement. When she buys these textiles or articles of clothing and makes it part of an installation, she wonders if she’s essentially stealing the work and not crediting the artist, much akin to copyright infringement. There are a couple of different elements of intellectual property at work here, such as copyrightability of ‘useful articles’ and the First Sale Doctrine. I will first delve into the copyrightability of ‘useful articles’.

In Star Athletica v Varsity Brands, Varsity Brands sued Star Athletica for infringing on its cheerleading uniform designs. This landmark case determined whether features of a ‘useful article’ are copyrightable. Typically, clothing is considered as ‘useful articles’ because it has a utilitarian function as something that covers people’s bodies. ‘Useful articles’ don’t qualify for copyright protection, and thus clothing doesn’t warrant as much – if at all – copyright protection. The court found that “that the Copyright Act allows graphic features of a design to be copyrighted even when those designs are not separable from a “useful article.” Essentially, designs are copyrightable, even when featured on a ‘useful article’, but the ‘useful article’ itself isn’t copyrightable. Unfortunately, despite this case, courts find it difficult to navigate copyright in design and fashion. Although fashion is just wearable art, courts often fail to look past the functional element of the design – hence why there are so many ‘dupes’ or replicas in fashion. As a fashion-enthusiast myself, I see way too often small designers getting ripped off by large corporations or fast-fashion brands. 

In Marielena’s case, when she purchases clothing or textiles in Guatemala with traditional designs and such, the items are likely subject to lower copyright protection, or have none at all. Thus, she is not likely to commit copyright infringement when incorporating them into her art. If anything, it would likely constitute Fair Use due to the transformative nature of her art and what she does with them. Marielena was saddened to hear that such beautiful Guatemalan textiles, clothes, and designs may not be subject to copyright protection simply because they are ‘useful articles.’ Marielena believes that just because something has utility does not mean it is not art. If anything, it makes the art better because it can be worn. Nevertheless, Marielena takes solace in the fact that using the objects for her art somehow keeps the item alive. She is making the item a part of art even if it isn’t considered art in its own right.

First Sale Doctrine

Another thing to consider when it comes to the Guatemalan textiles and clothing Marielena uses for her art is the First Sale Doctrine. In Kirtsaeng v. John Wiley & Sons, the courts established that the “‘first sale’ doctrine, which provides that ‘the owner of a particular copy or phonorecord lawfully made under this title . . . is entitled, without the authority of the copyright owner, to sell or otherwise dispose of the possession of that copy or phonorecord,’ §109(a)”. In summary, once a copyrightable item has been sold (a book, movie DVD, clothing item, textile), the purchaser has the ability to do with the item as they see fit. They can sell it, burn it, or throw it away. For Marielena, once she purchases the textile or the clothing item, she can do what she wants with it, including incorporating it into her art. It must be noted that the underlying copyright title does not transfer to the new owner, so the new purchaser cannot reproduce the original, they only have the freedom to do certain things to the copy. 

There are of course nuances to this, but given the lesser copyright protection ‘useful articles’ hold, the Fair Use aspect to incorporating the purchased items into her art, and the First Sale Doctrine, Marielena is likely okay to keep using the items in her exhibits.

Moral Rights and the 4 Theories of Copyright

Marielena, through our conversation, learned about moral rights. She thought it was a very useful tool for artists like her. She believes that art is rooted in a culture and a community – it is meant to be shared. For her, it is important that her art be accessible for everyone, especially her intended audience. She does not want some western entity to purchase her art, confine it to some elite part of the world where there is no opportunity for people to appreciate and share it with those it was meant to inspire and give voice to. She talked about murals, how they are often taken out of the communities they are meant to serve and then placed into a museum where only the privileged few are able to view them. In that sense, the target audience shifts. Marielena wants a say in who gets to see her art, to protect it. She still wants to have a choice over her art after it is sold. For her, the audience and access aspect is important, and she is excited that there is a legal tool out there to help artists continue to have a say over their art. 

Unfortunately for Marielena, Moral Rights pretty much only extend to the physical integrity of the object – not being able to destroy or mutilate it. While Marielena does have grounds to claim that limiting the access and changing the audience/location of art substantially destroys/distorts her art, courts may not see it that way since there is no physical destruction. In Copyright in the Expanded Field by Xiyin Tang, an artist named David Phillips designed sculptures for Boston’s Seaport Park. Pembroke Real Estate wanted to relocate them, and Phillips sued because he claimed that the surroundings are integral to the sculptures and moving them would be a violation of VARA. The courts disagreed, stating that the integrity remains as long as the sculpture itself is still intact. This exposed a deep bias the court has to acknowledging the non-literal aspects of the integrity of art. Thus, Marielena will have a difficult time, much like Phillips did, in arguing that access and audience are part of the integrity of her art.

“Either VARA recognizes site-specific art and protects it, or it does not recognize site-specific art at all…The court’s ultimate decision reflects a deep antagonism to land art’s uncomfortable position between that of traditional art objects, governed by the law of chattels (movable property), and land, governed by the law of real property.”

Xiyin Tang, Copyright in the Expanded Field

It is important to note that Moral Rights are relatively new and limited in the U.S. Moral rights are more expansive in France where they recognize that artists have a stronger claim to their art despite any commercial transactions that may occur. They recognize the need to expand moral rights beyond just not being able to destroy something. This reminds me of the 4 theories of copyright. There is the Fairness Theory, which recognizes that copyright aims to reward the effort artists have put into their work. This can be determined by the “Sweat of the Brow” test (how much effort did they put into it?). The more the effort, the greater the copyright protection. There is the Personality Theory, which I believe most relates to Moral Rights. This acknowledges that a work of art is an extension of the artist – it is like their baby and they should have ownership over it. Moral Rights recognizes the same thing as Personality Theory, and aims to expand those ownership rights. There is also the Welfare Theory, which aims to incentivize the creation of useful arts and sciences to solve the public goods problem. If there are no laws to protect and incentivize art, society would lose out on those inventions and innovations. Hence why copyright only lasts for a ‘limited time’ because the government eventually wants the art to enter into the public domain.  Last is the Cultural Theory of art, which aims to promote a just society.  

Unfortunately, VARA is not supreme, and courts have a hard time seeing art as anything other than a commodity. They also take issues with certain mediums. Architecture is not typically protected by VARA, nor are non-permanent arts such as garden exhibits. The intellectual property regime struggles with art that is fixed in nature or not permanent. Courts have a bias towards traditional art, and have trouble navigating art in all its forms.

Cultural Appropriation

When we talked about the copyrightability of Guatemalan textiles, clothing, and designs, we also talked about how it relates to cultural appropriation. In a way, Guatemalan artists like her are preserving cultural art and traditions; however, how can they as a culture protect their art and designs from those who would seek to appropriate it? Cultural appropriation is akin to theft. Taking designs and traditions from people who have spent years developing the designs and embedding it into the culture. Unfortunately, because of that very reason, when the designs and traditions become so widespread as to become part of a culture, it has in essence become an idea. Ideas cannot be copyrighted, but the expression of those ideas can be. Please see the Idea/Expression Dichotomy section for more information. Even without the idea/expression dichotomy, those designs/traditions have entered into the public domain long ago, and it would take an especially distinctive expression of those designs/traditions to warrant copyright protection. In this way, cultural appropriation is better governed by the public and social norms. 

Upon hearing this, Marielena explained that cultural appropriation is nuanced and difficult to deal with. She understands that the larger issue is when people reduce a group of people to solely one thing. As a mixed-race person, she believes that Pakistan is not solely defined by its bindis nor is Guatemala solely defined by its huipils. Cultural objects should be appreciated and shared, and there ought to be other systems to govern the line between cultural appropriation and appreciation better than copyright – or that copyright may not even be the right tool for it.

What Marielena Believes Copyright Ought to Be

As a small artist, Marielena doesn’t think about the law at all when creating art. For her, creating art is almost a compulsion, something she has to do. She gets inspired, and she turns that inspiration into something tangible. Art is how she expresses herself, and there needs to be a better way to allow artists to express themselves without the fear of legal retribution. Intellectual property is rooted in the idea of private property and the protections that entails. Art is different. Artists take inspiration from the world, from nature, from each other. Instead of thinking another artist is stealing from you, artists should be flattered that they were the inspiration for new art. Intellectual property should be more aligned to an artist’s spirit rather than to free markets. 

Copyright definitely has its place in the art world, but it is hard to imagine a different reality for it. Marielena believes that artists like herself should be able to create whatever she wants whenever she wants. When it comes to things like Fair Use, the government intrinsically understands that people do draw inspiration from others and makes it their own – transforms it. Instead of making people jump through so many legal hoops to prove Fair Use, we as a society should understand that all art is stolen. Everyone takes things and reappropriates them in their own way. Real consequences shouldn’t be legal, but more so just patheticism. If an artist is mad someone copied them and made something better, that is on them for their lacking. Courts can’t fit art into a case. Art is a different world altogether. Regulation doesn’t have much place in creativity. To Marielena, rules, free markets, commerce have no place in art. Art is not just a commodity. Small, community artists live by a code of sharing. Marielena realizes that not every artist is like that, but that is how she operates. To her, art is a public good, not private property. She hopes that people can conceive of the world in a different way than just buying and selling things. In the meantime, she would appreciate more help for small artists like herself in navigating this legal regime.

Marielena’s Reflections:

Reflecting back on our conversation, Marielena learned that there needs to be an adequate intermediary between the intellectual property regime – which is filled with legal jargon and capitalist mentality of fair use and private property and market impact – and the many artists who simply wish to produce art and create that are not tied down to such fears or concerns.

These types of laws are operating on a different ideology. When Marielena creates art, there is a compulsion in her to create; there is no consideration for the market. To her, buying and selling is separate, and it would be nice to have an intermediary to facilitate anything that comes after her creation. She is thankful for this website and how it is helping to fill that role.