“I walk, I look, I see, I stop, I photograph” – Leon Levinstein. Photographs are ‘artistic’ and ‘creative’ works. Every element of an artistic or creative work, be it a photograph or art, weaves a tapestry of ingenuity that transcends time and space. Creative expressions illustrated through artistic work encapsulate the essence of culture, history, emotion, and thoughts that reflect facets of the human experience. The pursuit of collecting such artistic or creative works is an embodiment of passion, self-contentment, and exploration of individuality that rejoices in the power of the human mind. Thus, the course of collecting artistic or creative works is an enriching journey and a testament to the realities we encounter in our lives.
“Parables of the Womb,” acquired and preserved by the Durjoy Bangladesh Foundation (DBF), is an embodiment of creative work that encompasses a series of portraits of Birangonas (War Heroes) of the 1971 Liberation War of Bangladesh. The lustrous masterpieces were crafted by Dilara Begum Jolly, an acclaimed artist, painter, and sculptor in Bangladesh. Jolly’s visual brilliance rejuvenated the photographs to commemorate the plight experienced by women during the troubled times of the Liberation War.
Nonetheless, the spinoff artworks consist of reprinted photographs of the Birangonas (War Heroes), unwaveringly adorned with needlework, attaining the eminence of ‘derivative work.’ Derivative work is a form of creative expression spawned from pre-existing original work that contains substantial transformation and epitomizes the creator’s vision. As a result, it receives the protection of copyright law and allows the creator to control her integrity and commercial interests. That being so, Jolly assigned the portraits in favor of the Durjoy Bangladesh Foundation (DBF).
Andy Warhol
Liz ll 1965 ll 22 x 22 inch
Furthermore, Andy Warhol, perceived as one of the pioneers of Pop Art and Creative Vision, created the artwork titled “LIZ” in 1963. The “LIZ” series comprises several paintings devised from Elizabeth Taylor’s publicity photograph for her film titled ‘Butterfield 8.’ Andy Warhol used a method of silkscreen printing. The sequel showcases Warhol’s signature style of using vibrant and bold colors blended with contrasting hues and epitomizes the fondness for fame, iconic personalities, and celebrity culture lived by Warhol. The “LIZ” series incites critical reflection on Taylor’s larger-than-life status, fame, personal life, and media saturation. The “LIZ” series remains a significant part of Warhol’s enduring legacy, continuing to provoke the intricacy of the chemistry between art, commerce, and mass media, inspiring the artists and audiences of this age. The “LIZ” series, inspired by the original work of portraits featuring the icon Elizabeth Taylor, is a specimen of derivative work. One of the artworks from the “LIZ” series is another jewel of the repertoire proudly conserved by the Durjoy Bangladesh Foundation (DBF).
Atul Dodiya ll At the Haripura Congress ll 22 x 30 inch ll 2000 ll Water colour and charcoal on paper
Atul Dodiya, one of the most coveted contemporary artists in the Indian subcontinent, rose to prominence in the late ’90s for a series of artworks he created on Mahatma Gandhi. One of the artworks from that series depicts Mahatma Gandhi and Netaji Subhash Chandra Bose engrossed in a deep conversation. The artwork was reincarnated from a public domain photograph dating back to 1938. The original photograph was captured during a session of the Indian National Congress in Haripura. The photograph marked the first resolution for regaining India from the British Raj.
The artistic rendition created by Dodiya is a sepia-washed watercolor painting that immortalizes the historic moment that paved the way for India’s liberation and commemorates the significant roles played by the two iconic leaders. The Durjoy Bangladesh Foundation (DBF) steadfastly preserves this offshoot artwork as a poignant memento.
Nonetheless, a photograph essentially contains the subject and the precise moment captured within. Original photographs enjoy copyright protection under copyright law. Copyright protection for photographs begins the moment the image is created, i.e., fixed onto the film negative through the camera’s shutter click. The person who captures the photograph is considered the ‘author’ and becomes the first owner of the photograph’s copyright. The copyright owner of a photograph enjoys exclusive rights, including the right to reproduce (copy, print, download, etc.), the right to communicate to the public, create derivative works, and the right to prevent unauthorized use by third parties.
As it appears, the original photographs, whether portraits of the Birangonas, Taylor’s publicity photograph from the film ‘Butterfield 8,’ or stock images from the 1938 session of the Indian National Congress in Haripura, were standalone works created by independent photographers. These photographers are presumed to be the authors and owners of the copyright in those photographs unless there is covenant to the contrary. The portraits are unequivocally not orphan works, although it is unclear whether they were captured as freelance work or commissioned under a ‘work for hire’ contract.
Duct Tape Banana By Maurizio Cattelan
The inherent thought that inspires compassion in artists’ minds for creating derivative works can be explored through the words of Maurizio Cattelan: “Culture has been rewritten many times from many different points of view. If we look at history, copying has been the method of disseminating knowledge as much as in the contemporary world: scribes copied books to ensure future generations had the same knowledge and to preserve their culture over the centuries. A few years earlier, the Romans copied Greek sculptures, as today we copy the great classics and see them in souvenir shops. Copying is a concept as old as humanity because it is the presupposition of knowledge tout court,” a philosophy that resonates with Rabindranath Tagore’s school of thought on ‘moner mukti’ (indulgence of the mind). This is the juncture where the law intersects with creativity and innovation.
Nevertheless, creating derivative works from original photographs is permissible if endorsed by, and without prejudicing the interests of, the original author. Some jurisdictions are accommodating to derivative works created for certain purposes under the principles of ‘fair use,’ without the original author’s permission, taking into account the underlying purpose, nature, extent, and potential impact of the derivative work.
By and large, artistic works create bridges that connect our past, present, and future, reminding us of the timeless beauty and relevance of human creativity. Artistic works such as Parables of the Womb, the LIZ series, and Mahatma Gandhi and Subhash Chandra Bose’s paintings have the innate ability to evoke emotions, resonate the connection between art and human experience, and ignite the passion for collecting and celebrating art. The intensity exhibited by the Durjoy Bangladesh Foundation (DBF) in its diverse art collection is commendable.
The dynamic interplay between copyright protection for photographs, derivative works, and digital artistic assets has become remarkably intense in the age of NFTs, which consistently pushes the boundaries. NFTs have revolutionized the concept of ownership and the domain of collecting and preserving art. Owning an NFT and owning a copyright are not the same. Copyright law does not confer any rights to the NFT owner, but the NFT owner may use ownership to exert substantial control over an NFT. This control is not automatic; two separate rights come into play here—the right to own a single copy of the artistic work and the right to make copies and generate derivative works from the original work. NFT technology enables broader access to innovative creations. Tokenization of artistic works into NFTs opens new streams for generating revenue. Collectors of artistic works can now play a transformative role and foster a dynamic ecosystem that blends artistry and commerce in ways never seen before.
ll 24 x 36 inch ll 2014 ll Acrylic inkjet on canvas
Digital print on archival paper ll 14 x 20 inch
Nonetheless, the pursuit of collecting and preserving art is a noble endeavor driven by genuine passion and unwavering faith in the power of creativity. Collectors are custodians of history. It’s not the financial gain but the narratives woven by the creators that motivate these collectors. Collectors dedicate themselves to safeguarding artworks as a testament to the evolving journey of humanity. Each piece of artistic work encapsulates a moment frozen in time. With every artifact, artists breathe life into their visions, and collectors, in turn, take on the sacred responsibility to ensure that these visions endure for generations.
The photographs series is part of part of ‘Soaked Dream’, art project of performative refugee, displaced and migrant families, being progressed between 2015-2021. Size variable. Dugaal High Definition Matte Archival Photograph.
The acquisition and conservation of artistic creations like Parables of the Womb, the LIZ series, or Mahatma Gandhi and Subhash Chandra Bose’s watercolor paintings by a collector are noble, genuine, and glorifying. By preserving artistic works, a collector imprints the notion that the artist’s creative vision connects human races and passes down our narratives to the generations to come.
By Barrister A B M Hamidul Mishbah – the writer is a practicing lawyer, who specializes in Intellectual Property (Copyright & Visual Art) and Technology Law.
