OPINION: Mine/Yours: Fair Use vs Free For All

Bloggers picking on Gallery 303
Photo mash-up: taken from hyperallergic.com, it was shot by “unidentified” New York bloggers in protest of Gallery 303’s no-photo policy: in the background, Maureen Gallace, “August” (2009)

I always thought it was pretty clear that galleries represent artists and make their living doing so to the best of their abilities. It seemed pretty clear to me that if I walked into a gallery, I was playing by their rules. Indeed, it seems like wise business practice and if I were on their roster, that’s how I would prefer things to be: my images should be protected and my market should be optimized by the gallery and its resources.

As artist Deborah Fisher puts it, “Artists are told upways and down that they really must control their photographed presence…I don’t blame the gallerists for wanting to control which images make it online. And I think it’s so easy to get good images from gallerists that there’s no excuse not to at least try to play nice.”

So imagine my surprise when I found that the very common no-photo policies held by many galleries were being decried and, lamely, protested by wanna-be militant bloggers.

Apparently the notion that anyone with an i-phone can just swing into any white cube and start pressing buttons is a common one, and is actually in need of refutation.

Curious as to how it should happen that issues of “mine” and “yours” would be so easily confused, I read many related posts.

The most profound conclusions I could reach were:

1) Issues of fair use were often misunderstood and taken by bloggers to imply a free-for-all. A quick Google or Wiki search should be enough to clear things up, but in the face of flat out bad manners, it hasn’t yet.

2) Bloggers often see themselves as anti-establishment heroes and have strangely inflated ideas about what it means to take an amateur shot of a picture on a wall.

In answer to posted comments asking why one should not simply ask for jpegs from the galleries in question, one blogger responds, “…journalists” who ask permission before doing stories aren’t journalists, they’re amanuenses. Or a member of the White House press corps.”

To which another, in more measured tones, quips, “You’re not covering Vietnam or Watergate…”

Another, jaw-dropping self-aggrandizing statement made by, I guess, another blogger, confirmed my worst fears: some of these people think their god-awful pix are an art in themselves:

“Shooting a show is part of the thinking process. I’m connecting the dots visually and verbally. I want to be able to get up close for a detail or shoot two paintings that are in a particularly interesting visual conversation.”

3) Many people think that everything is and should be free now, just ‘cuz.

C-Monster says: “In this day and age, in which information is shared and disseminated virally, this is the kind of legal B.S. that does an artist, the press and those who enjoy art a real disservice.”

An incredibly measured response from starpower was, ironically, erased by one blog host because said host was awaiting identification which starpower had apparently not been upfront about. Hmmmmm…The response, the sanest and most succinct of all the comments, is reproduced here:

By starpower on May 8, 2008 3:46 PM

All gallerists are entitled to look out for the copyright interests of works that they exhibit. Artists rely on gallerists to identify as many incidents of unauthorized use of images as possible.

The lighting on the above-posted images is atrocious, and it misrepresents the works. 303 Gallery is correct in its request that the work be removed from the Internet.

It should also be noted that attendees of the press preview at the Armory Show were advised that photographs should not be taken without the permission of an exhibitor. A blogger or journalist does not automatically have the right to photograph any work at most fairs.

In the event that no exhibitor is available to grant permission, it would be fair to say that an exhibitor does not waive his/her right to request removal of an image from a web site.

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Links

http://jameswagner.com/2007/09/capla_kesting_t.html
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http://hyperallergic.com/3402/art-bloggers-protest-303-whitney-biennial/
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http://c-monster.net/blog1/2008/05/08/the-first-ever-douchebag-award-goes-to/

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Fair Use

Notwithstanding the provisions of sections 17 U.S.C. § 106 and 17 U.S.C. § 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.

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