THE ARTIST’s INTENT

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.

January 29, 2012

Transformative Use is Useless

‘Transformative use’ is just mucking things up.

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.

Read the rest on Hyperallergic

January 27, 2012

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

cariou-prince-290 — 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.

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

January 13, 2012

IP Law and the Art of Analogy?

teeter2 — Left to right: Claudia Ray (Goose), Virgina Rutledge (Egg), Anthony Falzone; Center bottom image: "Smokin’ Joe Ain’t Jemama" in Hank Willis Thomas's "Unbranded,'' (1978/2006) from the book ''Pitch Blackness'' (Aperture, 2008) (graphic by the author for Hyperallergic)

The New York City Bar Association’s “What We Talk About When We Talk About Appropriation: Contemporary Art After Cariou v. Prince” was, as billed, “a frank discussion of fair use and artistic practice.” And it was, indeed, frank, with all six panelists speaking plainly and tough audience questions encouraged. But it was also, clouded and meandering, the way that all intellectual property discussions are.

For those who may need a refresher, Cariou v Prince, involved photographer Patrick Cariou who sued Richard Prince (the grandaddy of appropriation art, most famous for his re-photographs of cowboys and cigarette ads) for copping a wanton number of photographs from Cariou’s published collection, Yes, Rasta. Prince lost the first round and an appeal is pending.

What captured the art world’s attention, and sharpened thee focus of intellectual property (IP) law experts was the tsunami of speculation that followed the court’s very harsh decision against Prince in which he was ordered to hand over the contentious works to Cariou and to notify all current owners of the essentially cancelled series.

Was this a turning point? Would it have a chilling effect on appropriation art? What was governing these decisions? Were they out of control?

Read More on Hyperallergic

December 18, 2011