M.C. Escher is well-known for his finely crafted compositions integrating mathematics and art, creating brain-teasing images, transforming creatures and impossible architectures. Escher’s optical illusions, explorations of geometric patterns and perspectives make him a favorite among scientists and mathematicians. So it is no surprise that Nanoscientist Robert Hovden chose Escher’s Regular Division of the Plane as one of the microscopic etchings in his new show, When Art Exceeds Perception. Hovden chose this Escher work for its ” lovely tessellation with symmetries that can be found in the crystalline silicon substrate on which it was etched.” Unfortunately, the Escher Estate sees the use of Escher’s image as nothing more than a copyright infringement.
As readers of the Art Law Journal are keenly aware, Copyright Law has few bright lines, made even hazier when confronting issues surrounding new technologies, such as nanolithography. Is copying art that nobody can see an infringement? Does this new technological process, or the pattern created by millions of Escher’s, transform the work such that it is considered fair use? Does an analysis of this issue even work within the bounds of the Copyright Act and current case law? Let’s take a look.
What is Nanolithography?
Nanolithography is a technique for etching, writing, or print on a surface in single atoms. In 1959, Physicist Richard Feynman suggested that the future of technology would be in using nanoassemblers to break down the atomic structure of raw materials and rearrange the atoms into new materials and constructs. Unfortunately, 50 years after Feynman’s prediction, nanotechnology is fairly limited. Nanolithography is among the most cutting edge techniques although its application is limited to fabrication of leading-edge semiconductor integrated circuits (nanocircuitry) or nanoelectromechanical systems (NEMS), and now art.Escher’s Regular Division of the Plane
In Hovden’s new work, viewers are treated to what appears to be nothing more than a series of blank gray disks. Each disk contains a series of nano images roughly one-tenth of a micron wide. According to Hovden, “people will stare, and they usually find small imperfections in the disk. They think maybe that’s where the art is. But probably not.”
On one of these disks, the irregular shapes or combinations of shapes of Escher’s Regular Division of the Plane, interlock completely to cover the surface. Other disks have other copied works; The Treachery of Images by René Magritte, Le Platane by Henri Matisse, and Laylah K. by Joy Garnett. The Magritte and Matisse are no longer under copyright, and the Garnett is under a Creative Commons license that allows Hovden to use it. Only the Escher is under copyright protection.
“Here, I wanted to make something that is a direct representation of the original artwork – just like the low-amplitude ‘pirate’ music performance. The verdict is still out on how this type of work will be received,” says Hovden. The answer to that question, at least as far as the Escher Estate, is not well. In an email to The Verge, Mark Veldhuijsen licensing manager for the Escher Estate said that “[a]ll of [Escher’s] work is protected by (international) copyright laws and unauthorised use is thus punishable by law. The size of the reproduction is irrelevant.” There is no doubt that if these works were at a viewable scale, Hovden would be commuting a blatant copyright infringement, however, Does his “low-amplitude” work fall under fair use?
Is Hovden’s Work Fair Use?
Courts look at four factors when deciding on fair use, weighing each one against the others, which when viewed at as a whole indicates fair use. Judges are given some leeway in weighing these factors, so any analysis must be case-by-case.
PURPOSE AND CHARACTER OF THE USE: The primary inquiry is whether the use of the copyrighted material is transformative. Does the new version change the meaning of the copyrighted work so that it is for a new audience. Hovden’s work is copy, only changing the work by scale. But Hovden’s work is not just smaller; nobody can actual see it. Does using nanolithography make it new, attracting a new audience of science-minded people?
NATURE OF THE COPYRIGHTED WORK: The Court will consider factors such as whether the work is informational or entertaining. Copyright Law is designed to encourage the spread of new ideas that benefit the public, ultimately allowing others to build on those creations. Educational, public news, or non-profit works are more likely than commercial works to benefit everyone so are more likely to be considered fair use. Hovden merely copied Escher’s work, but at the same time, Hovden used Escher’s work as analogous to the medium on which it was etched. Hovden’s work is both informative and entertaining, with only a minor commercial aspect.
AMOUNT AND SUBSTANTIALITY OF PORTION USED How much of a copyrighted work is used to create new work vs. how much is necessary for its transformation. When using copyrighted material to create new work, it is best to use as little as necessary to fulfill the artistic vision. For example, in a major case from 1977, a CBS affiliate reporting on the death of Charlie Chaplin, broadcast a one-minute-and-15-second clip of a Charlie Chaplin film during several of its news programs. CBS claimed fair use as necessary commentary to discuss the actor’s death. The court rejected the argument finding that the portions taken were “substantial” and part of the “heart” of the film. Hovden is using the Escher work in its entirety, millions of times. On the other hand, for Hovden to create an interlocking image across the plane of the Silicon plate, he requires the entire Escher work.
EFFECT OF THE USE ON THE POTENTIAL MARKET This factor balances the benefit the public gains by use of the copyrighted work, against the personal gain of the copyright owner. As well, from a commercial perspective, if the new work is so close to the original that it may cannibalize sales of the original work, claiming fair use will be difficult. The likelihood that someone who would have purchased Escher’s Regular Division of the Plane will instead purchase Hovden’s work is small. An argument can be made that instead; the nanolithography helps promotes Escher’s work by making the public more aware of it.
So is Hovden’s work fair use? There’s no easy answer. Both sides have plausible arguments so any determination outside of the courts is probably nothing more than guesswork. Predicting outcomes in fair use are becoming more difficult. New technologies, like nanolithography, are stretching the bounds of copyright law which is making it hard to provide creators with useful advice. As of this writing, Escher has not filed a lawsuit against Hovden. That decision may be more economical than legal given the small potential benefit vs. costs for the Escher Estate.
So the answer to “Is copying someone’s artistic creation onto a medium that we cannot see with the naked eye, a fair use,” is probably going to take a while. The Copyright Act is in need of an overhaul to account for the effect of new technologies among other things. Don’t expect an overhaul soon though, as Chris Reed opined in his article on the future of copyright. Instead, expect the bounds of current copyright law stretch even further during the coming years. One day though, perhaps when the old guard of technology deficient members are in the minority, Congress will finally decide copyright needs an update, so we can better predict it outcomes.