It’s a cruel world that makes a thief out of an adoring fan. Erik den Breejen is a keen Beach Boys fan and one who knows, now, what the back of a beloved hand feels like.
Recently, reading an article on NewsGrist, a blog that mixes equal parts of arrogance and naiveté, I came upon the usual blah blah about inarticulate artists and the ineffable meaning of their awe inspsiring creations. Add to this a wholesome toot of tired and foggy hot air about Pollock and what did he mean by x,y, or z?
All this wearying nonsense went toward commentary on the Richard Prince case, childishly insisting that Richard Prince’s cocky and deliberately bungling deposition claiming that he meant nothing should simply be ignored while the rest of his deposition, i.e. anything supportive of his fair use claim, should be paid close attention to.
I marvel at this “inarticulate” artist argument— especially as regards Richard Prince, a self named bibliophile who wrote a screenplay and who’s written prose is not only proficient but downright poetic.
The argument that artists would or should need coaching is silly as well. ALL defendants need coaching. EVERYONE who speaks or debates in public has talking points. There is nothing unique to artists that should absolve them of having to make sense.
A fair use defense is not a matter of defending the “ineffable” — we are cultural grown-ups and well beyond such assinine and childish beliefs.
If a defendant wants to claim fair use, they have to prove fair use and that hangs largely, especially in this case, on Transformative use. That’s the way the current practice works.
I happen to think that transformative use is useless anyway: that’s a better argument. Frankly the spirit of copyright law is to preserve the incentive to create. ANd bottom line, these days, that speaks to markets: markets of IDEAS, of INFLUENCE, of ATTRIBUTION, and of MONEY.
So PRACTICE is the issue if you dont’ like coached answers and you don’t like judges mucking about in issues of meaning –practice needs to be changed with regard to transformative use. Remember that transformative use is NOT written into law. Courts can and should pay more mind to market issues and less to “meaning.”
But as things stand, Prince messed up big time by being a cocky inarticulate asshole.
That’s what I think.
Providing a pivot for the Cariou v Prince case and the only real point of interest no matter what the pundits say, transformative use, instead of the fog-clearing test that it was supposed to be, has become the main particulate in a legal fog of war that has lasted three years now.
Thus far, the dueling Cariou v Prince briefs have added new certainty to my theory that transformative use is a singularly unhelpful notion.
As a follow up to my earlier story about the crochet artist, Olek, I just verified today rumors that the charges against her are, indeed, in writing, very serious.
You will recall that Olek’s own story was that she got “involved in an incident with a drunk and aggressive male who behaved reprehensibly. The incident happened extremely quickly and not knowing anyone in London or able to access her cell phone for numbers she was swept up into the legal system and treated very poorly.“
I hope all readers will bear this in mind. I hope you will realize as well that women are constantly in danger of escalating situations with this sort of “aggressive male” and don’t know the details of Olek’s encounter yet.
That said, the charges, in writing, as sent to me by the Southwark Crown Court in London are as follows:
Wounding with intent
Wound/cause grievous bodily harm without intent
Assault by beating
Possess knife bladed/sharpe pointed article in a public place
Southwark Crown Court informed me that the trial date is set for September 3, 2012.
Attempts to obtain a fuller story from Olek’s lawyers have met, so far, with silence.
In my latest Hyperallergic article, part Two of a there part series on the importance (or not) of the Cariou v Prince case, I discuss the money issue:
“The Prince team, in asking that “the judgment of the district court should be reversed and summary judgment entered for Defendants” or that “ the judgment should be reversed and the case remanded for a new determination on the issue of fair use” has a lot at stake. And only a sliver of that has to do with all the sweat and tears that went into that masterpiece. It can be argued that perhaps more of the stake is in the artist’s market.”
When it’s a trademark.
On January 13, 1966, Andy Warhol pulled out all the stops for his debut of The Exploding Plastic Inevitable, a series of events featuring his films, and performances from Factory Super Stars. Performing at “Uptight” the opening event which took place at the New York Society of Clinical Psychiatry, a new band, The Velvet Underground were instantly made by the Warhol star-maker machinery.
Taking the band under his wing, Andy Warhol produced their first album pressed in 1967, The Velvet Underground & Nico, for which he also created and signed the now famous banana graphic. Though the band broke up in 1972, Lou Reed and John Cale have, they say, continuously used this image in marketing and promotion for 25 years, most recently to promote a1989 re-union tour and record, Songs for Drella, which they made in tribute to Warhol.
On Jan 11, 2012, The Velvet Underground filed a suit against the Andy Warhol Foundation for the Arts (AWF), essentially the Warhol estate, accusing them of illegally leveraging copy rights to the image which they never registered officially, and of licensing it to third parties “in a manner likely to cause confusion or mistake as to the association of Velvet Underground with the goods sold in commerce by such third parties.”
Suggesting that, with so many graphics to choose from, The Andy Warhol Foundation can only be using the banana to capitalize on its association with The Velvet Underground, the band seeks an injunction against the AWF, to make them stop licensing the banana to third parties. They also demand a declaration that the Warhol Foundation has no copyright interest in the design, are demanding “unspecified damages”, and a share of the profits made by the Warhol Foundation from any licensing deals.
“The symbol has become so identified with The Velvet Underground … that members of the public, particularly those who listen to rock music, immediately recognize the banana design as the symbol of The Velvet Underground,” say the plaintiffs who are claiming a trademark on the image.
A pop-culture savvy friend of mine begs to differ. Social media consultant, Nichelle Stephens says, “There are two whole generations that would disagree. Gen Ys and Millennials don’t even think about album art anymore. They’d just think it’s a Warhol.
Also curious is the claim that the AWF have “no copyright interest” in the banana. Apparently the claim by Reed/Cale is that since Warhol never obtained a formal copyright got the graphic, and subsequently the AWF published the image many times, it is “in the public domain.”
Now, I’m left with many questions which I plan to answer in a follow up…
Doesn’t the artist own the copyright whether they registered it or not?
And doesn’t a copyright hold for the lifetime of the artist +75 years?
And wouldn’t that copyright go to the artist’s heirs, again, whether registered or not?
And if the heirs were using the image simultaneously with someone else, couldn’t they retain trademark rights if their use were equal to the others?
On the other hand, if a copyright is never claimed but the art has been gifted to a record company or a band, or, maybe was a ‘work for hire’ then wouldn’t the copyright belong to the beneficiary or employer?
And one more question: can one claim a trademark on an image they never registered, and that has been in the public domain?
I’m confused as to why no reports thus far address these questions. I plan to.
Some Answers: Banana Fanna Faux
Go ahead, expect more of these sweaty headlines with question marks in them. Because, with the now rather infamous Cariou v Prince case up for appeal sometime this year, we are facing another deluge of half-informed, and angrily contentious, punditry which will wash over the raw, dry, factual sands of more professional reports like a tsunami of histrionics.
Drowning in the madness will be all those bleeding hearts who root for the little guy, and the sundry art world know-it-alls who root for controversy, along with the fastidious fence straddlers like myself who can’t do right by anyone — and, let us not forget, the stalwart naifs who insist on seeing appropriation as flat out theft.
In the background, lawyers toil away, building sand castles of the driest, rawest, facts they can muster.
It is no wonder that the case has captured the attention of so many. It involves a lot of money, after all, and it pits an underdog, Patrick Cariou, against an art star, Richard Prince, and his giant posse of star-makers and lawyers. It also comes after artists had become cocky, with most copyright infringement cases settling without trial, and often to the mutual benefit of defendants and plaintiffs.
At base the issue is this: Richard Prince’s team must prove that district court judge Deborah A. Batts ruled in error when she decided against Prince’s fair use claim. Patrick Cariou’s lawyer, Dan Brooks, must argue that the ruling did, in fact, use the correct legal standard.
Brooks will file his opening brief by January 25th. Faced with the formidable 135 page appeal filed on Oct. 26, 2011 by big guns Boies, Schiller & Flexner, and a nearly 50 page amicus brief filed on behalf of Richard Prince by the Andy Warhol foundation, plus similar briefs from Google and a consortium of museums (including The Metropolitan Museum of Art, The Museum of Modern Art and The Art Institute of Chicago), Brooks will have to answer five newly refined points of contention.
- That contrary to the first circuit court’s decision, the Canal Zone works that use Cariou’s photos are indeed transformative in every sense established by art history and accepted artistic practice and constitute a fair use of those images.
- That Prince’s “intentions” do not factor into the meaning that his work may or may not have since it is the viewer and the context of a work that give it its meaning.
- That contrary to testimony, Cariou did not lose any marketing opportunities due to Prince’s use of his images; indeed, his lawyers argue, his book prices soared after the initial bout of litigation.
- That the first circuit decision, if upheld, will create a “chilling effect” on future creative work, and thereby will override the very purpose of the fair use exception which is intended to protect free speech and works of social value.
- That, in the Batts decision to protect the copyright holder, Patrick Cariou, the rights of the appropriation artist, Richard Prince were unduly impeded, as her ruling overreached in lumping all of the thirty paintings under one ruling.
In Part One of this Three Part series, I set up a virtual dialogue between Dan Brooks (Schnader Harrison Segal & Lewis LLP.), Patrick Cariou’s lawyer and Anthony Falzone, executive director of the Fair Use Project and a Lecturer in Law at Stanford Law School.
In Part Two, I will discuss the five points above in greater detail. In Part 3, I will part the waters.