Ticking Away: Christian Marclay’s The Clock and Copyright Law

Posted on: September 12, 2018 by

A stern-looking man with a gun turns towards a metallic device mounted on the wall. He places one hand on the device’s handle and checks his watch. It is 12.04. Next we see an analogue clock hanging above a presenter reading the BBC radio news into a microphone. The time on the clock reads 12.05. Suddenly we are in a man’s bedroom as he is getting dressed. He leans over the bedside table where, in front of his alarm clock, he dabs his finger into a white powder that could be cocaine. The clock is about to turn 12.06.

Each scene comes from a different film. The first was shot in black and white, a textbook example of film noir. The second is in murky sepia-tone. The third features a young Richard Gere. The films are unrelated and the scenes are spliced together in somewhat disorientating ways. What unites them is that they feature timepieces – and they have all been incorporated into Christian Marclay’s masterpiece of video montage, The Clock (2010).

For those who might remember it, The Clock made a great sensation when it was premiered (and offered for sale) at the White Cube Gallery in Mayfair in late 2010. Now it is getting its first showing at a major British public institution: Tate co-purchased one of six editions of the piece in 2012 (along with the Centre Pompidou and the Israel Museum) and will be displaying it at Tate Modern from 14 September 2018 to 20 January 2019. Get ready to queue.

The Clock is not merely a patchwork of movie clips. There is a story being told about the powerful minutiae of cinematography and the values we place on the hands and digits that tell us the time of day. When time is of little narrative consequence it is barely perceptible (the alarm clock in Richard Gere’s room, for instance), but when it is pivotal (like for the man with the gun) it is a central actor in the drama.

What is most incredible about The Clock is that it plays out relentlessly over 24 hours. And every time we see a clock face, whether hanging in a room, above a train station or strapped to the wrist of a character, we are seeing the very hour and minute that it happens to be in real time. If you find yourself in the Tate auditorium in late September between 12.04 and 12.06, you will see the very scenes I have described above. And yes, the auditorium will remain open for three 24-hour cycles: on 6 October, 3 November and 1 December, in order to offer some viewers the chance to watch the piece in its entirety, a prospect that might sound wearying to others. (This opportunity is afforded to Tate members in advance on 13 September.)

Is this the work of an artist? If we think of artists carrying palettes and paintbrushes, then the answer is obvious. But even if we welcome videographers and film directors into the pantheon of the great masters, The Clock still doesn’t seem to fit. Christian Marclay did not dress any of these sets, he did not give direction to the actors, he never yelled “action” or “cut”. He found existing footage from thousands of hours of commercially produced films and sculpted it together so that “clock” scenes were included, timing it all to perfection. Or rather, he hired a team of six researchers to do the watching, while he undertook the editorial assembly at the end.

The Clock works its magic in unusual ways. It is perhaps the familiarity that first draws in the viewer. Was that The Maltese Falcon? I’ve seen the man with the glasses before… Oh look, Richard Gere! But before you are able to remember the name of the film or its onscreen talent, you are swept off to the next scene, suddenly immersed in another environment with new faces and a different rhythm. And yet there will be a residual familiarity in this other world. You are now anticipating a clock and the time it will show. Before long, you will be rewarded. Time remains the lead in this film and, through its many faces, appears constant throughout. In the end, it is the cleverness of the idea, the scope of the production and – a little like Wagner’s Ring Cycle – the damned feat of pulling it all off that impresses us most. Oh, and the comfy seats.

What is startling about the project is the way in which Marclay used existing “found footage” (a latter-day version of the objets trouvés of the Surrealists) without obtaining a single permission from those who hold the rights in the original films. Some of the films are obscure art-house fare, but many hail from Hollywood or the golden age of British cinema.

Anyone who understands the vast world of copyright clearance would find this incredible. If you want to use a piece of someone else’s work (be it a film, a sound recording or a book), and that work falls within copyright, you usually need a licence. Licences are permissions, often provided by organisations known as collecting societies, though they can also be given by copyright holders themselves. Collecting societies usually charge money for the privilege of using material – sometimes a lot of it – they collect the proceeds, then they distribute those proceeds to the relevant copyright holders. For movies, music and books, this is big business and results in the transfer of great amounts of wealth from users to creators every year. This is what PPL-PRS does for musical works, what DACS does for the visual arts and what the MPLC does for film. This complex form of licensing often goes unnoticed by members of the public who are, in most cases, the end-users of cultural products. Who knew, for instance, that Macy Gray’s “Do Something” from 1999 (4:59 in duration) required so many licence agreements that the song ended up having a total of 17 songwriters in the credit line?

But neither Marclay nor White Cube, which first marketed his work, did any of this for The Clock. Not a single copyright licence was obtained ahead of its first showing. This is not unusual for a breed of creator known as the “appropriation artist”. One of its leading proponents is the American artist Jeff Koons, who often uses found images to form the basis of his collages or his large-scale sculptures. More than once he has ended up on the wrong side of legal disputes in the United States (such as in the 1992 case of Rogers v. Koons involving the use of a photograph of puppies in order to make a sculpture, see image below) and, most recently, in France. Richard Prince, another artist who uses material without permission, is currently being sued in relation to one of his works that involves an enlarged printout from a third party Instagram account, with very minor alterations, offered for sale through a New York gallery for $90,000.

Believe it or not, the laws in some countries have shifted in recent years to facilitate this kind of artistic practice. In 2013, Richard Prince mounted a successful defence before the US courts after he had used photographs taken from a French photographer without obtaining – or even seeking – permission for doing so. Koons himself has had more luck of late in the US courts, which have continued to expand the doctrine of ‘fair use’, allowing certain forms of use of copyright material, especially if the usage is found to transform the meaning of the original work in an important way. Even in the UK, major changes to copyright law introduced in 2014 included new ‘fair dealing’ exceptions for the purposes of parody and pastiche, as well as quotation.

These exceptions have created new rights that everyone in the UK can benefit from. Whereas prior to 2014 one could be successfully blocked by a copyright owner for using a clip from a film for the purposes of parodying it, a formidable defence now exists for that very use. The fair dealing exception for quotation is also quite generous. Despite how it may sound, “quotation” is not restricted to text-based material. It is not merely cover for quoting a paragraph or part of somebody’s speech. Now you can quote from a song, a broadcast, even a commercial film – though you do have to be careful. The quoting must always be ‘fair’, proportional to the use and must generally include an acknowledgement of the source work.

The Clock was first shown to the public through White Cube in 2010. Strictly speaking, anyone who reproduces even a single image from a copyright-protected film can be infringing copyright, as can anyone who shows part of that film in public. Now there are reams of case law that have defined (or tried to define) what constitutes a “reproduction” or the “public”, but let’s not get into these for now. We can assume that, in most cases, what Marclay and White Cube did at the film’s premiere would have constituted copyright infringement.

Now in 2018 matters are somewhat different. There are fair dealing defences for “pastiche” as well as “quotation”, either of which seems a viable candidate for describing, in a legal way, what Marclay has done. A pastiche, to go by the Intellectual Property Office’s definition, includes “a composition made up of selections from various sources”, which seems accurate. Quotation would fit as well, seeing as Marclay is engaged in quoting short clips from different films for artistic purposes. Each of these uses made in a purely artistic context seems fair and, in regards to quotation, seems proportional to the overall purpose of showing the clocks. For quotation to apply, however, each film clip would also have to be duly credited, which would need to be done by providing the acknowledgments on a nearby panel or in a readily available brochure.

Whatever Marclay did to make The Clock in 2010, neither of these legal protections would have been available, at least not in the UK. But for the institutions that show the work to the public, copyright issues can nevertheless persist, at least in theory. This is because showing a film in public (even a short but substantial part thereof) can qualify as copyright infringement. That may have been a problem in 2010, but is now significantly reduced as a result of the 2014 changes.

Tate took a diligent but bold approach when co-purchasing the work in 2012, seeking specialist legal advice and mitigating risk as necessary. No related copyright claim has been made against the gallery in the six intervening years. There has also been an obvious decline in risk over this time. The work has now been shown in over a dozen countries and not a single lawsuit has been launched, not even in the United States. So there is a justifiable feeling that the work has been approved, if not through the traditional licensing process, then by the passage of time. Anyone with a valid copyright grievance would have likely surfaced by now. Or so we can imagine.

As a result, the path appears to have been cleared. Even though the 2014 fair dealing exceptions now make it easier for creators like Marclay or purchasers like Tate to reproduce or show film-based works in public, the approach used in this case was more about risk management than using legal provisions as a shield. And fittingly, all it took was time.

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The author would like to thank Bernard Horrocks (Intellectual Property Manager, Tate) and Emily Gould (Senior Researcher, IAL) for reviewing this article. The information about Macy Gray’s “Do Something” came from Greag Mac a’ tSaoir (National Galleries of Scotland). The images from The Clock shown above come from an unknown film source.

And for those interested, copyright will be one of the topics covered in the upcoming IAL Study Forum at Notre Dame in London on Saturday, 20 October 2018.