A Legal Guide Helps Artists Make and Protect Protest Art

Harvard’s Cyberlaw Clinic lays out a handy set of information about copyright law and related issues in its new “Cyberlaw Guide to Protest Art.” (drawings by Jessica Yurkofsky, except where noted, and courtesy of the artist and Cyberlaw Clinic)

In the days immediately following the 2017 Women’s March, members of the Harvard University Cyberlaw Clinic and their colleagues at metaLAB learned that a number of artists who’d created some of the iconic images from the march were facing challenges, mostly brought on by the fact that work they’d created for themselves and their close circles had gone viral and was appearing all across the internet.

“When you’re getting that kind of attention, you want to have your ducks in a row, and we realized that there wasn’t really a good resource for folks to get their questions answered,” said organizer Jessica Fjeld, in an email interview with Hyperallergic. “Whether on the left or the right or in between, political art is incredibly important to our democracy, allowing people to advance their vision for policy and the future, so we felt it was incumbent on us to provide those answers.”

Hayley Gilmore’s protest poster was appropriated for profit without her permission. (image by Hayley Gilmore, courtesy of the artist)

For example, artist Hayley Gilmore created the Princess Leia “A Woman’s Place Is in the Resistance” poster, which was then grossly appropriated by a company reprinting it for profit, as reported last week by AIGA Eye on Design. Gilmore’s experience was one of several that inspired the Cyberlaw Clinic to take action.

What emerged is “The Cyberlaw Guide to Protest Art,” published on January 22, just in time to address anything that may have come up in the aftermath of the second annual Women’s March in protest of Trump’s presidency. Text of the guide was written by the Clinic, namely Fjeld and a group of Harvard students: Maggie Finnegan, Jackie Kim and Jose Lamarque. Illustrations for the guide were done by Jessica Yurkofsky of metaLAB, and the project was coordinated by Sarah Newman.

(drawing by Jessica Yurkofsky)

“We also benefited at a couple of junctures from the advice of an editorial board of artists and lawyers who work with them regularly, to help us understand the key questions we needed to answer,” said Fjeld, “and once we’d drafted up those answers, to make sure the language was clear and the examples on point.” While this is the first guide of this exact type made by the clinic, it was modeled to some degree on a past Berkman Klein initiative, the Digital Media Law Project (which is no longer updated).

“We’ve been thinking more generally at the Cyberlaw Clinic about how we can broaden the impact of our work with other public-education type projects, too, in other law and tech areas,” said Fjeld, “so a colleague of mine and some students worked on a guide for immigration attorneys whose clients’ devices are subject to border searches.”

Fjeld mentioned a few high-profile examples of artists who suffered consequences from copyright infringement, including Shepard Fairey — whose iconic “Hope” poster was based on an Associated Press photo of Barack Obama that he pulled off the internet and used without permission, dragging him into a long and costly copyright infringement suit — and the more recent example of a Michelle Obama mural in Chicago that was startlingly similar to another image of her that a different artist had earlier posted to Instagram.

(drawing by Jessica Yurkofsky)

“Because political art speaks directly to issues that people care deeply about (in that instance, having an African-American First Family), there’s a strong incentive for folks to use it, share it, repurpose it,” said Fjeld. “Before the internet, that meant maybe repeating a slogan or getting out your guitar and covering a protest song (both fine from a copyright perspective), but the internet makes it incredibly easy to grab a whole work and copy it, and share it with thousands or millions of people instantly. That’s a double-edged sword: an incredible technology for building culture and community, but one with real consequences for artists who want to be able to control the destiny of their work.”

In true lawyer-like fashion, the creators of the Cyberlaw Guide are quick to remind readers that this is in no way the definitive or exhaustive word on copyright law and other related issues. However, it is an excellent jumping off point, and one that addresses many common misconceptions about issues of public domain and fair use, among others.

“As we say in the guide, just because something is available publicly — as in a Google image search result — doesn’t mean it’s in the public domain,” said Fjeld. “’Public domain’ actually means things that aren’t protected by copyright, whether because they’re old (roughly, created before 1923 here in the US), because the copyright owner has dedicated them to the public domain (for example, through the Creative Commons CC0 license), or for some other reason. In some ways content on the internet is like the banquet scene in Miyazaki’s Spirited Away — so many images, songs, and movies right in front of you, and it all seems free, but sampling can have consequences, and you’re in a much better position if you know the rules before you jump in.”

(drawing by Jessica Yurkofsky)

The Cyberlaw Guide to Protest Art is a available to anyone for free online.