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.
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.
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.
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.
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.
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.
The Art Machine 