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.