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Hallowe’en, Costumes and Copyright – Hugh Stephens Blog

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As far as grovelling, abject apologies go, this one would win an Oscar. The author was not just “deeply sorry”, she was devastatingly contrite, spelling out in detail how her organization’s newsletter had used language that she described as “denigrating, racist and very harmful”. She admitted the newsletter had caused harm and pain and pledged that the organization (Art Canada Institute) would do better in future, and is committed to deepening its own learning and engaging more closely with artists to improve the Institute’s understanding of their work. What was the heinous action of the Institute that prompted this full-throated mea culpa? The newsletter had linked the work of several artists who express their work through costumes to Hallowe’en!

Just in case you didn’t know, Hallowe’en is no longer an activity just for the fun and delight of children who go Trick or Treating in costumes. It has been hijacked by adults who either dress up at the door when handing out the goodies, or stand costumed behind their little offspring or, as happens frequently, dress up to go parties, sometimes roaming the streets and causing trouble. Some of the costumes worn, usually by adults, are considered inappropriate by today’s standards. (Just ask Prime Minister Justin Trudeau who was famously outed by Time Magazine for wearing a blackface and turban costume back in his youthful days before politics). Just in case you aren’t sure what is inappropriate these days, Good Housekeeping has a list of the 15 most offensive costumes (with examples!). Universities regularly publish guidance for students, (who are supposed to act like adults, and unfortunately often do) hoping they will think twice before dressing up in ways that could be considered offensive by some groups or in costumes that might be considered cultural appropriation. This stating of the obvious by colleges drives some people crazy, complaining that “woke” institutions have no business telling students what or what not to wear off campus. Let’s just say that in the political and social environment in which we currently live, which can variously be described as “acutely attuned to longstanding issues of social justice” or “political correctness taken to extremes”, Hallowe’en is no longer what it used to be. Associating an artist’s work with it can lead to grief, as the Art Canada Institute found out.

According to the apology, which I received by email but which doesn’t appear to be up on the Art Canada website (nor is the offending newsletter);

 “Hallowe’en (is) a holiday that has, both historically and in the present, often led to costumes that are racist, bigoted and cruel in their representation of people who experience intense and systemic discrimination. (It is) also associated with commercialism and triviality…”

Of course, as soon as I received the apology, it sent me scrambling to find the offending material. In what was obviously a light-hearted attempt to leverage the theme of Hallowe’en, the Institute’s October 28 newsletter opened with “As Hallowe’en approaches, we’re looking at how artists in Canada have used the transformative power of costume to trick the eye and treat the mind”.

“For artists, costumes can be constant in their creativity, not limited to October 31. In the works below (eleven artists were featured, 9 of them still living) we share how dress up plays a quintessential role in inspired expressions, the presentation of alter ego, and the realization of parallel universes in which artists provide audiences with both playful absurdities and well as subversive comments on bigotry and oppression…Through the power of costume, lines are blurred between perception and reality and we are presented with new worlds, meaning and possibilities”.

None of that sounds racist, denigrating or harmful to me, but I guess perception is in the eye of the beholder. The two artists no longer in the land of the living, one of them a 19th century photographer, clearly didn’t object, but some or all of the remaining nine artists must have. The images of the works presented were all used with permission, but it appears that none of the artists was involved with the write ups. The descriptions of the sometimes “edgy” works were whimsical but factual, and in all cases there was a link to further information, either the artist’s own website or a scholarly work. The real problem appears to have been the linkage with Hallowe’en, which some likely found offensive for reasons stated above, or because it appeared to trivialize the role of their costume-related art by associating it with the annual dress up extravaganza. It’s all rather unfortunate and unpleasant for those concerned, especially for Sara Angel, Founder, Executive Director and Publisher of the Art Canada Institute. She is herself a well-known art historian and parent to three teenagers (according to her bio)—which may have led to her not looking at Hallowe’en through the same lens as some others. (My speculation).

What the artists were doing, from a copyright perspective, was asserting their moral rights. They retain those rights even if the economic rights have been transferred. Of the three moral rights, (outlined in Canadian Copyright Law by Lesley Ellen Harris), paternity (right to claim authorship), integrity (right to prevent a distortion, mutilation or other modification of the work to the prejudice of the honour or reputation of the author), and association (right to prevent use of a work in association with a product, service, cause or institution), the latter two would seem to be relevant. In this instance, of course, there was no lawsuit alleging a violation of the artists’ moral rights; instead there was a complaint, a discussion and an apology. The most famous legal example of the exercise of moral rights in Canada is the case of artist Michael Snow’s flying geese at the Eaton Centre back in the 1980’s, as I wrote about here.

The “Hallowe’en hook” that the Art Canada Institute used to grab readers’ attention is understandable as it is common practice to use contemporary events to highlight issues to generate interest. On the theme of Hallowe’en, an informative and fun blog was written a few days ago on the “Copyrightability of Jack O’Lanterns” by Sidney Blitman for the Copyright Alliance. In case you’re wondering, whether a carved pumpkin qualifies all comes down to a couple of things; whether the carving is truly original (there are only so many ways to carve a pumpkin, which might engage the “merger doctrine”, which applies when an idea can only be expressed in a limited number of ways, thus denying copyright protection), or “fixation”, which is required under US law. A pumpkin won’t last forever, and it can be asked whether the artistic work carved into the surface of a slowly decaying vegetable (or is it a fruit?) qualifies as fixation. However, as I have written in earlier blog posts (“My Fixation with Fixation”) and (“Copyright Protection for Transitory or Ephemeral Works: Going Beyond the Photographic Record”), a recorded design might be sufficient to establish copyright even if the object no longer exists (like a sand design or, yes, an originally carved and designed pumpkin that has soggily lapsed into a state of mould).

I am sure that the intention of the Art Institute Canada in making reference to Hallowe’en in its October 28 newsletter was to tweak the interest of readers in art linked to costumes by referencing an upcoming event that affects many families. However, the law of unintended consequences kicked in big time, resulting in an abject apology appearing the same day, within hours, when at least some of the artists exercised their moral rights by objecting to the context in which their work was portrayed. While I generally try to avoid Hallowe’en and Hallowe’en parties, in future I will certainly be more conscious of the minefield one potentially walks into when even thinking about a Hallowe’en costume.

The most positive spin one can perhaps put on this is to consider it a “learning moment”. I hope everyone has learned that Hallowe’en is no longer just a fun evening for the kids.

© Hugh Stephens, 2022. All Rights Reserved.


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