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.
The Art Machine 
(1) Transformative use is “written into the law.” Over centuries of balancing the copyright holder’s interest against the appropriator’s right to free expression the court’s developed the (holistic, non-exhaustive) 4-part test of fair use. Part of that test is to look at the “purpose and character” of the challenged use. To the extent that the use is a creative one that stands on its own as a work of art, it is precisely what our culture’s profound respect for free expression means to promote. And that’s what a “transformative” work is: one that uses the appropriated piece in a way that’s creative and original enough to stand on its own.
(2) But in making the fair use determination, courts look at all 4 considerations. There’s no easy weighing, and if the copyright holder’s economic interest is being harmed, there’s a real problem for the appropriator. But that’s also a way of explaining why some such uses wouldn’t be deemed transformative — if the copyright holder’s economic interest in his work is harmed, how can the new work be deemed a creative and original work in its own right. It’s really just serving as a substitute for the original.
(3) Then again, some “transformative” uses do economically harm the original. Really effective parody or critique (plainly forms of expression our society has no interest in discouraging) can chill any interest in the original. Have you ever read Mark Twain on James Fenimore Cooper? After having done so, no one could seriously read Cooper again.
(4) Sorry, but it’s a case by case weighing of very important interests. It’s hard. That’s life.
(5) And why should an artist be penalized (like Colting, the author of the Salinger “sequel” for naively calling his work a “sequel” before he ever encountered the legal mess) when if he’d only used the right word (it’s a “parody”!) he would’ve been fine (in Batts’ mind)? It’s silly. Artists don’t produce their work with an intimate knowledge of the proper legal jargon with which to label it, nor should the label determine what the work actually is.
My comment revised:
I had previously noted that “I will be addressing Peter Friedman’s rather long-winded and slightly snooty numbered comments in an upcoming post. At least he took the time to post them which is more than I can say for those who just try to just leave links!”
I add that, since corresponding with him, I have found that he numbers everything, and that he’s not really a pedant, he’s just got a lot to say and a lot of authority to lean on. So stay tuned: I expect to post more on this subject w/in the week.
Just brilliant.
I’m curious why NEWSgrist, the Warhol Foundation and others are railing about the trampled rights of Prince and Gagosian? Why is there so little concern about the bad faith use and extensive commercial exploitation of Cariou’s work, the assinine explanation for using the work by Prince, the arrogant claim that Cariou’s work was typical, generic and minimally creative by Gagosian, yet they sold pieces with minimal ‘painting’ by Prince for millions… This reeks of a justification for colonization of documentary workers by the top elite in the art market. Don’t artists (even photographers) who have an ethical relationship to their subject-matter and a point of view they can articulate deserve protection too? What about Cariou?