When is a Banana Not a Banana?

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.

Is this The Velvet Underground's trademark.

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

Will Round Two of Cariou v Prince Change Art Law Forever?


You're going to see a lot of this guy -from Patrick Cariou's Yes Rasta

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.

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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.

Read the rest and look forward to Parts TWO and THREE on Hyperallergic

OPINION: Conflicts of Interest Add Color & Texture

K Haring's Andy Mouse:

On Faso’s Brushbuzz, a kind of Reddit for the art market, I discovered a seedling of bothersome art theory: one bsherwrin contemplates whether or not “ad sales play a role in shaping art history in the sense that art publications– both online and in print — tend to end up reviewing exhibits at galleries that also happen to pay for ads in the publication?” Leaping from the question to an assumed ethical issue, the  post asks us to discuss the question:  “Should art magazines– and art blogs that feature an art-focused ad network for that matter– avoid a conflict of interest by not reviewing exhibits at galleries that also purchase ad space in the publication?”

Now people, we LIVE in a well-documented network of “conflicts of interest.” Conflicts of interest are de rigeur in every field. And conflicts of interest have been a part of the playing field in the arts for decades now, and are more and more the norm.

We have artists who are curators, advisors, arts writers and bloggers (just check out the bios on Facebook!). We have museums who have collectors who are artists who are guest curators who place their own works in the show. We have curators and art consultants who collect art themselves (a quickie browse through Linked In should show many of these). We have museum directors who are ex-gallery owners who have a vested art historical interest in the artists they supported in their earlier career. Hell, we’ve even had large corporations put up a pop-up gallery on public property in order to display artists who’s work echoed and celebrated the company’s designs — artwork that the company then had contracted to hold first rights to purchase.

Reading an article about a show at a museum? Well, I suggest grain of salt, my friends. No one’s even trying to be “objective” any more and, honestly, it’s time to move on.

BITS: Prince’s Jokes (Explained) & $treet Art

It’s Not Funny if You Have to Explain It

RICHARD PRINCE Untitled Joke Painting, 2009 Collage and acrylic on canvas. 48 x 36 in. (121.9 x 91.4 cm.) Signed and dated “R. Prince 2009” on the reverse. ESTIMATE $350,000-450,000 PROVENANCE Gagosian Gallery, New York Photo via Phillips dePury & Company

Phillips dePury has topped past unintentionally funny catalog copy with a new gem describing Lot 30 in it’s upcoming Contemporary Art Auction.  Lauding Richard Prince’s “Untitled Joke Painting,” dePury opens with this dubious gusher:

“Richard Prince’s Joke Paintings have remained a constant high point within the artist’s output for over two decades.”

Mm-hmm: Yes. Yes they have remained the high point. Sadly.

Then, having prepped us with the bad news, dePury goes on to do the WORST thing you can ever do to a comic: they EXPLAIN his joke!

“The work is technically lush, utilizing both acrylic and collage. The centered block letters read, in nine rows, “I never had a penny to my name, so I changed my name. Again, I never had a penn.” Prince’s obvious joke is corroborated by letters cut in half, and even missing with respect to final “y” in penny. One must assume that he did not have enough to his name even to get the text set correctly.”

Yeah. Heh heh. That must be it.

Oh, but there’s a leetle bit more: in case you missed that other funny…

“Interestingly, the joke Prince prints across the present lot is entirely unrelated to the subject of nurses, and thus the viewer might be left wondering what the connection is between the subject and its background. …If what he has collected also amounts to the oeuvre he has amassed, perhaps it’s simply natural for one piece to pratfall over another.”

Thank you. We might otherwise have assumed that Richard Prince just had a few nurses to get rid of.

+++++++++++++++++++++++++++++++++++++++++++++++++++

“Street Art” is Just a Word for “Emerging Designer”

We’ve all seen it. Shep, Damien, Banksy… they started out hanging from the eves with a spray can, and ended up hawking t-shirts and limited edition art objects online.  Yet even the advent of “Mr. Brainwash” didn’t really force us to just come out and SAY it.

But hell, now it’s time: The streets are just a starter kit for emerging artists with “urban” flavor: the goal is a corporate brand like OBEY or Objective Criteria.

Still, The Guardian sought out, Jeffrey Deitch, for the final word on street art as “big business.”

“Today, somebody does a tag in Russia, China, Japan, or Africa, a friend photographs it and within a few hours it’ll be viewed on websites all over the world,” says Jeffrey Deitch, director of the Museum of Contemporary Art in Los Angeles, which recently opened a major show on the subject. “I think you can make a good case that street art is now the most influential art movement of the past 30 years. The penetration of urban culture is huge, and it’s influencing everything from skateboard design to high fashion. Some of these guys have even been hired to design Louis Vuitton handbags.”

A Find!

Well's pretty baby, a 1988 Keith Haring, 14 x 9 inches, oil on glass

Lee Wells, of Stratus Global Partners, suspects he may have landed on a very good deal while “manning the Dorian Grey Gallery” on Sunday:

The way  he tells it: “A guy walks into the gallery and says ‘I used to roll with Haring and have a piece I want to sell and if you’re smart this is your lucky day because I need the cash today.'”

So he buys it because “the confidence of the mark tells me it just may be real,” and because “the lower tag is by long time Haring collaborator LA2 (Angel Ortiz).”

He spent “$99” on it, so the risk isn’t huge, though–the windfall may be — still, I admire his confidence.

Asked what comes next, Wells replied:

“Once we get it authenticated we will figure out what to do. It’s my piece and should I decide to sell it, I’ll will most likely share proceeds with LA2 and give a little back to the guy who sold it to me (maybe the gallery too) Its a pretty little piece from 1988.”

++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++

Curious about the possibility that a confidence trickster with a bit of niche art knowledge (and a confident hand) might be able to make a small pile of money by forcing hurried sales on galleries and collectors, I began a search for fake Harings — found nothing (so far) — but I did stumble upon a very fine site selling fake art to all the would-be collectors out there who scorn posters but must have a Keith Haring on their wall.

[/caption] 

On iFalsidiAutore.it, you can search for “replicas” by artist, title or subject. I would have posted an image of their Kieth Haring “Wolf” but they warn that “The image of the fake painting on sale is protected by copyright.”

Oh well then.

The Law of Maximized Irony

I have a metaphysical theory that I call The Law of Maximized Irony:

In a nutshell, any set of initial circumstances will resolve to the state of greatest irony.

Case in point:

With increasing frequency we see incredulous stories about artists who’ve made careers out of cribbing other people’s work suing artists who have copied them. Is it flat out hypocrisy, or good business strategy — or both? Whatever is behind it, the story makes for a lot of really good laughs.

Check out my latest in Hyperallergic:

Is a Cease and Desist About Irony, Hypocrisy or Legal Strategy?

 

You got TV all over my artwork…

Right: Colbert to Serrano, "You made me Charlie Chaplan!" Left: detail of Shep's stencil work

Got a piece of art with some TV sticking to it?  Call the fun-loving specialists at Phillips de Pury.

When Abdi Farah won the Bravo reality show, Work of Art, his 2010 “Baptism” went to auction at Phillips de Pury, selling for $20,000.

And now that Steve Martin has declared Stephen Colbert’s re-worked portrait, “a viable artwork” that “could be auctioned,” well: Phillips de Pury has snatched it up.

Created during a segment on The Colbert Report intended to promote guest Steve Martin’s latest book, An Object of Beauty, the portrait was gazed upon by Frank Stella, sprayed by Shepard Fairey, and then doodled upon and signed by Andre Serrano.

Asked what he’d done to improve it, Fairey told Colbert, “I made your agenda as an omnipotent quasi-fascist orator, and shaper of our politics and culture, that much more obvious as manipulation.”

In the brave company of other works of similarly dubious heft, like those of Donald Baechler and Dan Colen, Colbert’s mash-up will be on the block tomorrow. Though the Phillips de Pury  site describes the collaboration in hilarious art-speak,  the estimate is not ironic at $100,000.

Profits will go to DonorsChoose.org, an online charity designed to connect donors with classrooms in need.

For Your Consideration

BanksyLA
Mean Authority Figure, Tots, and lame crayon flowers

Banksy is in LA marking up surfaces with his signature lil’ rascals, menacing authorities, misplaced mutts, and drunk and disorderly mice. Many have speculated on Banksy’s mousetrap motives for visiting Hollywood — that he may be creating a Banksy egg-hunt in order to draw academy attention to his film, Exit Through the Gift Shop, which has been nominated for Best Documentary Feature.

Brash publicity tricks can only remind the academy, the press, and the chattersphere that the entire premise of the movie is mysterious and suspect, that the artist is a prankster who may will have created Exit Through the Gift Shop in order to establish an alter ego, Mr. Brainwash, for his blatant commercial endeavors.

The very first docuhoax ever to be nominated for an Oscar may well win just because the entire world is suspending disbelief.

Christie’s Mysterious New Blood

Courtesy Christie's, via ArtInfo.com Steven Pleshette Murphy: Christie's 1st American born CEO

Christie’s recent top management shuffle has inspired a good deal of speculation regarding the strategic intentions of owners, François Pinault and his investment firm, Groupe Artemis SA.  Does Artemis, which acquired the auction house in 1999 for $1.2 billion have secret plans to sell in the near future?

Sprung upon with announcements of a new CEO, Steven Pleshette Murphy, formerly president and CEO of Rodale publishing, and the promotion of former CEO, Edward Doleman to chairman, Christie’s execs can’t help but wonder what to expect next.

Kept secret until its announcement via a Sept. 20th e-mail to worldwide staff, the news apparently caused quite a shake up, not only because it was so sudden and unanticipated, but also because Murphy was chosen over seemingly more likely candidates like Marc Porter, the chairman of Christie’s America, and François Curiel, president of Christie’s Asia.

Artemis, meantime, denies all rumors of an impending sale, claiming it holds long-term plans for Christie’s which is, they say, one of their “strategic assets,” producing sales of $2.3 billion in the first half of 2010.

However, asked by ArtInfo’s Judd Tully about whether Christie’s has any more surprises in store, Murphy, Christie’s very first American born CEO, said, “There will be more to say in a few months.”

BITS: Art for Art’s Sake and Art for Espianage

THE UNDERBELLY PROJECT

This past week, Vandalog,  and The New York Times (amongst very few others) reported on a very elite art viewing experience. This was not for folks with paddles, not for Armani-suited champagne-sippers, and not even for the hippest hipsters, consulting Flavor Pill and attending the latest Winkle and Balktick events.

TrustoCorp Photo by RJ Rushmore. See more thorough coverage of this story and lots of amazing photos by Mr. Rushmore, Workhorse, and PAC on the Vandalog site.

Nope. This was for a select group of intrepid insiders. Journalists, who were, by invitation only, escorted into the unhallowed depths of our unfair city to view an art show that was created soley for, and in tribute to, art itself.

Continue reading “BITS: Art for Art’s Sake and Art for Espianage”

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