by Karolina Wanda Rutkowska
If one considers items of folk art as products which popularity gives a considerable boost to the development of the ethno market, one also needs to examine this phenomenon in terms of respecting the copyrights of artists. The great demand for handiworks and the so-called ethno-design has surpassed its status as mere seasonal fashion and now is becoming a trend, or is entering its golden age. Unfortunately, purchasing one copy of work is often confused with gaining copyrights to using the work freely.
By means of more or less advanced techniques, indeterminate numbers of souvenir articles are being produced both domestically and on a more massive scale. Most of these products refer to ornamental motives which are characteristic for a given region, or they are faithful representations thereof. Choosing to cut corners equals drawing from “common heritage” and placing on the market items which are of poor quality and produced on a massive scale with infringement of copyrights. “Cepelia,” a renowed company which offers handicraft works from all regions of Poland, has lost its position of monopoly holder because the market is being flooded with the so-called commercial gadgets.
When entering arbitrary Polish folk art queries in search engines, i.e., the traditional Łowicz paper cut-out, one can see a lot pictures, links to blogs, or online stores. These materials show the original works of folk artists, but also designer products. More and more companies produce and sell everyday items related to our native art. It is worth to look at them more closely. I can distinguish between two types of such companies.
The first type is companies who demonstrate respect and attachment to the tradition of our country, and who support folk artists by selling their products. A good example would be the company from Łowicz, Folkstar. The company came up with an interesting idea to supplement a certificate of authenticity together with an offered handicraft product. It is noteworthy that these certificates are signed by the Secretary of the Association of Folk Artists, Anna Staniszewska, therefore they are authenticated by an institution which not only associates artists from Poland, but also statutorily protects their rights. Apart from hand-made folk art products, the company from Łowicz sells everyday products inspired by our native folklore.
Companies of other category also appear on the market like mushrooms after a rain shower. These companies use traditional designs by placing them on their products without the knowledge and permission of the author. Here, unfortunately, one deals with the violation of the law on a massive scale.
Commonly, it is assumed that copyrights relate only to the works of professional artists who have a Master of Arts degree.
In relation to this flourishing procedure, Buttons Museum in Łowicz has organized the National Social Campaign for the Copyrights of Folk Artists, “Catch a Thief,” at the end of 2011.
Firstly, the origin of the title of the campaign needs to be explained. In the old days, when a thief appeared in a village, everybody started screaming in order to save his or her and the village’s possessions. The loud screams were intended to scare off the thieves and alarm the whole village of the approaching danger. The name also refers to the fact that the copyrights of folk artists are not taken seriously. A cut-out, a folk sculpture, or an embroidery seem to be on the margin of the law, outside the protective umbrella of the current regulations. Once used “nobody’s” cut-out appears over time on the products of souvenir brands in tens of thousands copies, and thus brings its manufacturer a lot of money (1). Notably, the most distinguished folk artists are the most frequent victims of such dishonesty.
On the 28th November 2013, the instigators of the mentioned campaign “Catch a thief!”, namely my father Jacek Rutkowski and myself, were invited to participate in the panel discussion “Unprofessional Artists, their works vs. copyrights”. The meeting was a solemn ending to the exhibition “The portraits of unprofessional artists from the photographic archive of Boleslaw and Lina Nawroccy” (2). Boleslaw Nawrocki put a lot of effort in protecting unprofessional artists, hence I believe it is important to familiarize the readers with this remarkable individual. Some of the information related to the work and activities of Boleslaw Nawrocki were reported to me by his daughter, Maryia Nawrocka- Teodorczyk during the above-mentioned panel.
The attorney Nawrocki was born in 1924 in Warsaw as a son of the artist Boleslaw Antoni and Janina née Neuding. During the Second World War, he completed his high school education, but he started studies only after the military operations ceased. Considering his education, he was a lawyer who specialized in international law. In 1957 he received a diploma at the Department of Piano at the Polish National Music School in Łódź. Until the mid-1980s, he cooperated with the French National Centre of Scientific Research (Centre National de la Recherche Scientifique). He studied international law and musicology in France. In 1960 he received his Ph.D. in law from the University of Paris. After he returned to the country, he connected with University of Łódź and University of Gdańsk and also cooperated with the Institute of Legal Studies PAN in Warsaw.
He published research papers on international law, copyrighting and musicology. He used the acquired knowledge and skills in his work for UNESCO (in the years 1961-1965). He was an acknowledged and appreciated connoisseur and a patron of the arts. He spent a lot of time collecting the distinguished works of Polish painters and native folk art. He shared his passion with his wife Lina. Apart from collecting art works, he also engaged in strictly ethnographical work: he recorded interviews with artists and kept photographic and descriptive records. His relations with unprofessional artists could be described as a patronage from the legal point of view. Bolesław Nawrocki died in Warsaw in 2008 (3).
The panel was attended by persons who are closely acquainted with the subject of copyrights infringement in relation to unprofessional artists. The members included lawyers, ethnographers, representatives of the Association of Folk Artists, the initiators of the National Social Campaign for the Copyright of Folk Artists “Catch a Thief!” and a large audience who also participated in discussion. At the very beginning, the initiators of the campaign and the artists whose copyrights are regularly breached were encouraged by lawyers. As it transpired, the Polish copyright laws are one of the best in Europe. What of it? There is a lack of common awareness of laws possessed by unprofessional artists. Until now, the media have informed the public only about various forgeries of the works of renowned artists, while the technological and civilization progress have led to the situation where the works of amateurs, mainly folk artists, are also being targeted by law-breakers. During the conference “Patterns of Europe”, organized in Lublin by Warsztaty Kultury, the story about the campaign “Catch a Thief!” was met with understanding which points to the fact that the issue is commonly known. Anna Staniszewska, the representative of STL (Association of Folk Artists), has remarked that our activities are very important. This has motivated me to further work to promote the copyrights of folk artists. It was suggested that we cooperate with the Association of Folk Artists. Therefore, we are deliberating on establishing the Scientific Council consisting of ethnographers, workers of museums and representatives of STL.
The theft procedures (I’m not afraid to use this expression) are so common that more and more frequently they affect not only folk artists, but also other persons who come to us in relation to the campaign “Catch a Thief!”. It might be stated that we have become a sort of “first aid kit”. When the wronged person talks to me about the problem, I foremost try to calm his or her down. I realize that such unpleasant situations affect the state of mind of a folk artist and interfere with his/her art process. His/her state could be compared to the rape trauma syndrome. I support this strong statement by the fact that stealing a work or its part and drawing financial benefits from its frequent use, often in large quantities on various everyday items, results in losing the motivation for work by a folk artist. The robbed artist is often convinced that after his/her next work is included in an exhibition, a catalogue or an online publication, it will be immediately copied and used in a similar fashion. The artists often do not know how to pursue their rights and in many cases they are ashamed to disclose the situation. It needs to be emphasized that art is often the only source of income for folk artists. I know cases of depressive states which interfered with the art process to the extent that some artists had to stop their artistic practice. This, in domino effect, causes further consequences, such as the lack of financial means to support the artist and his/her family. The robbed artists often have to deal with this problem alone because the members of his/her family do not know how to help him/her.
In cases of justified suspicions of copyright infringement, we secure the available evidence at the request of the wronged person. Because these crimes often occur on the Internet, this is extremely difficult. Next, I compare the gathered data with source material made available by the artist (4).
On the basis of assembled documents, we issue a written statement on behalf of the interested entity to the infringing entity concerning the inflicted damage. Such form of communication often impels the other party to apologize, stop their infringing activities and repair the damage voluntarily. It sometimes happens that the infringing entity, a person or an institution, is noncompliant, in which case additional legal support is required. In such cases we offer that the wronged party asked an attorney for help in the further work on potential initiation of legal proceedings. In this situation, we allow access to the previously assembled documents relating the possible infringement of the law.
In cases where the help of a lawyer is not required, we attempt to ensure that a legal confrontation with the copyright infringing party occurs. The first meeting takes place without the presence of the wronged entity because he or she is often not capable to take the courage and face the thief face to face.
The explanations given by persons who take possession of other people’s property are often astonishing. The most commonly used argument is “the wish to cultivate the cultural heritage”, or “drawing from national achievements, or common heritage”. What’s more, the artist should be glad that his or her design is visible on so many amazing objects” (5). I, for one, agree with the argument concerning the promotion of our national culture, but why does that have to happen without the knowledge and approval of the author of a given work?
Other explanation, heavily supported by the presumed knowledge from the field of ethnography (precisely Polish folk art), is based on the conviction that a folk artist is anonymous. I agree with that, but only to a degree. Many research papers dedicated to this subject clearly explain that folk art used to be anonymous. This has changed thanks to the activities of Cepelia which issued certifications on particular designs. Currently, a folk artist has ceased to be anonymous. Due to various museum and outdoor events in which folk artists present their works and lead workshops, they give credibility to the authenticity of their works and the represented field of folk art. The defense of the party accused of infringing copyright often imputes that the author of the work has not signed his/her product. When I talk with the wronged artists, they are usually surprised and say: “If I signed it, then who would buy such a scrawled thing? You cannot do such thing. It would look ridiculous and unprofessional” (6).
There are those who justify themselves by means of ignorance. I have heard from one of the folk artists that a person accused of stealing explained during the meeting in the presence of a lawyer that the design she had used was found online, and that she wasn’t aware it belonged to a particular artist. “If it was signed, I would have probably called and talked about the use of the design” (7). This proves that the lack of signature is interpreted as “nobody’s property, hence something to be used freely” (8).
Nothing of the sort.
There are cases where persons deny guilt by negating the actual copyrights of the artist. The thief attempts to explain that he or she is not certain whether a given design was made by a particular artist and that this cannot be proved. In cases where the design is made out of a paper cut-out, it is sufficient to give scissors to the artist and he or she can make a similar or identical work. So far, we haven’t been able to provoke such a presentation in the court.
The questioning of the existence of copyrights of folk artists also appears in the statements of public persons who possess higher education.
Recently, we were able to document the largest exhibition of the cut-outs from Łowicz in the history of the region. One of the political groups has used in their voting campaign materials a series of different cut-outs made by living and deceased artists. In answer to our plea, which was also submitted to the media, the famous politician provided an illogical answer which only proved his lack of knowledge of the current laws. In the press release, he stated that folk art is not subject to any protective laws. According to him, the cut-outs from Łowicz belong to everybody since everybody knows how they look like and that they are similar, differing only in colour, and less often by shape. The watchword of his response was that we should use the folk art (9).
There are also thieves of intellectual property who attempt to come away unscathed from the situation by explaining that they searched for the artist and unavailingly tried to contact him/her. That kind of defense is very easy to refute. In the case of regional artists from Łowicz, they are a few publications which not only present their profiles, but also provide their contact information (10). A problem might arise when the author of a given work is deceased and his family is difficult to find. I also realize that after 75 years since the death of the artist, his or her material copyrights expire. Unfortunately, I need to remark that due to the greater attractiveness of colour and shape, the contemporary articles made by living artists are more often subject to thievery. It is important to add that this concerns the works of the most distinguished artists.
In order to illustrate this example, I will describe m intervention at the national fairs event. After only a few hours since I disclosed to one of the exhibitors that he had infringed copyrights of a folk artist whose name was mentioned in the conversation we had, the dishonest entrepreneur reached the source of the original design. He quickly contacted the author of the original work and cautiously persuaded him to provide his bank account number so that the former could make an appropriate financial gratification for using the work. What is more, the exhibitor was prepared to negotiate the payment for each copy of the product embellished by the design.
The most bizarre explanations, however, are provided not by entrepreneurs who conduct economic activity on a small scale, but by big companies. The representative or sometimes even the owner of a company explains that he hired a graphic designer who then designed an item, or that “the designer or the advertising company somehow took hold of it” (11). They can’t explicate where exactly the design was taken from; moreover, they start to stutter and their explanations become chaotic and unintelligible. This is a signal for us that the person with whom we are speaking begins to realize that he or she has committed a crime. During further clarifications, it transpires that the source is, of course, the Internet. Sometimes, the version of the explanation diametrically alters, and then the manufacturer who is caught red-handed at thievery sustains that he has been supplied with the design by the client. In most cases, it is an anonymous client.
More and more often, I encounter inquiries into whether it is possible to use a given design for a particular purpose and how to do legally. I then clarify that the lawful way is to contact the artist who, usually on the basis of a contract and thus fee agreement, allows for the use of a given design on a product, and specifies the period of use of his/her work. According to law, the granting of licence or the transfer of the author’s economic rights requires a written form which would stipulate both the subject and terms of contract, and the fields of use. It is the artist who decide whether and how a given work is to be used. It is strange and illogical for me that some people think that possessing a receipt, which is the proof of purchase of a specific handicraft article, equals possessing the copyrights to the work.
The procedure of stealing the works of folk artists on the Internet is both common and thoughtless. Driven by prospects of easy money, some people carelessly copy the pictures which are put online. Interestingly, more and more products (often jewelry) use designs which are not traditional but stylized, of which fact a criminal is oblivious. When cases like that are disclosed, it is easier to prove guilt to a criminal. Paradoxically, most cases of thieveries of works from the Internet websites are disclosed due to the fact that the stolen works are further published on the Internet.
One of the greatest accomplishments of the campaign “Catch a thief!” was a court confrontation of a public institution with a folk artist from Łowicz whose copyrights had been infringed. The subject of litigation was a medal minted on the occasion of the presidency of Poland in the UE. The medal was engraved with the design of a cut-out from Łowicz. When we uncovered the case, it was shown in media news, raising huge interest of the public. The reached settlement in this case undoubtedly confirms the righteousness of our activities.
Considering that similar cases are in progress, we impatiently await a specific sentence of the court regarding the infringement of copyrights of folk artists, which hopefully will become a precedent in corresponding legal decisions. We have been informed by lawyers who participated with us in a conference within the project “Patterns of Europe| Wzory Europy” that such a sentence is likely to be passed soon.
I know many cases involving the infringement of copyrights and I notice that in most of them both the artist and the party which illegally uses intellectual property act within the territories of the country. We have observed a few instances when the presumed perpetrator could have been a foreign company. Hopefully, the cut-outs will remain the trademark of Łowicz and the shepherd’s axe will be associated with Zakopane. For it is difficult to predict what would become of our culture if traditional folk handicraft items were mass-produced in China or Taiwan? It also depends on the customers that the procedure is stopped. While purchasing colorful souvenirs and folk art objects, we should closely observe whether they are original.
Translated by Aleksandra Bubiło.
Bartosiewicz M., Słomska J., Łowickie. Twórcy ludowi [Folk Artists], Łowicz 2007.
Chełmińska-Świątkowska J., Wycinanka łowicka [The Cut-Out from Łowicz], Lublin 1950.
Fryś E., Iracka A., Pokropek M., Sztuka ludowa w Polsce [Folk Art in Poland], Warszawa 1988.
Grabowski J., Sztuka ludowa, formy i region w Polsce [Folk Art: Forms and Regions in Poland], Warszawa 1967.
Grabowski J., Sztuka ludowa [Folk Art], Warszawa 1977.
Jackowski A., Polska sztuka ludowa [Polish Folk Art], Warszawa 2001.
Jackowski A., “Sztuka ludowa” [“Folk Art”], [in:] Etnografia Polski. Przemiany kultury ludowej, część 2. [Polish Ethnography. The Transformations of folk culture, vol. II.] Wrocław 1981.
Reinfuss R., Świderski J., Sztuka ludowa w Polsce [Folk Art in Poland], Kraków 1960.
2 The exhibition was opened on 16 November 2013 in the Grand Room (Duży Pokój) in Koszykowa Street in Warsaw.
4 I often use the research papers on unprofessional folk art by authors whose publications are enumerated in bibliography.
5 Authentic quotes of persons who were found guilty of infringing the copyrights of a folk artist.
6 Quote of one of the folk artists when I talked to her after a confrontation with the person who had infringed copyright by using a cut-out from Łowicz on everyday objects.
7 Authentic quote of a person who was found guilty of infringing the copyrights of a folk artist..
8 Authentic quote of a person who was found guilty of infringing the copyrights of a folk artist.
9 Purposefully, I do not use the name of the group and specific names of its representatives, or names of artists whose works were used. I also do not quote in full, but paraphrase the statement in the same linguistic style which represents the artist and his/her right to protect artistic activity in a very insolent manner.
10 One of them is, for example, the book by Bartosiewicz M., Słomska J., Łowickie. Artyści ludowi [Folk Artists], Łowicz 2007.
11 Authentic quote of a person who was found guilty of infringing the copyrights of a folk artist.