Maybe it’s MGM’s Banana?

Everybody Has a Sticker on This Banana! Graphic by Cat Weaver :)

Following up on the Velvet Underground v The Andy Warhol Foundation story, Hollywood Reporter speculates similarly to The Art Machine that the famed fruit’s copyright may belong to the record label.

Hollywood Reporters’s Eriq Gardner, wondering why the Velvet Underground hasn’t used a more fail-proof strategy of claiming the copyright for themselves (instead of opting to claim trademark protection on an image in the public domain) says,

“According to the facts in record, MGM Records paid both the band and Warhol $3,000 to furnish the image for use on the 1967 album cover. If the record label paid the money as a work-for-hire agreement, the true “author” of the image, under the law, would be the record label. We asked Universal Music Group, the seeming successor to MGM Records, to comment, but so far, we haven’t heard anything.”

It is an interesting speculation and one we may wonder about: is MGM silently planning its own little coup? And, if so, was it inspired by the Velvet’s bold but transparent strategies, or by press speculation about the Warhol graphic being a “work for hire?”

Or, maybe MGM has secret plans prompted by questions from sites like Hollywood Reporter asking them questions about the graphic? How meta would that be?

Fun Fun Friday

Olek: UNorthodox

“I do not expect to be a mother but I do expect to die alone” 27th January – 23rd March 2012

Congrats to Olek for inadvertently offending readers of Haolam Hacharedi,  an orthodox Jewish magazine which pulled issues containing a review of the artist’s latest coup off stands. Apparently when they decided to review Olek’s show at Tony’s Gallery in London, they were unprepared for the photographic contents of Olek’s texty wall weavings which contain intimate messages from the artist’s own mailbox, many of them of a sexual nature.

Isn’t that all men care about? Text, I mean.

Emergency measures were taken as head of the Union of Orthodox Hebrew Congregations in London, Rabbi Padwa, knocked out a dictum forbidding sale of the issue.

Read on JR: Orthodox magazine in porn shock
By Nathalie Rothschild, February 16, 2012

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Art Trends:

KRAAAP

Postmodern denial of authorship
Burying big things
Text (see above)
Juicy Colors and Subjects
Critic Art
Ugly Ass Biomorphic Stuff
Arrested Developement Nyah-Nyah Art

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Solidly in the WTF Category

The Press Release says: “THE MUSEUM OF MODERN ART PRESENTS THE FIRST LIVE RETROSPECTIVE OF THE ELECTRONIC MUSIC PIONEERS KRAFTWERK” and promises “Entire Repertoire of Eight Conceptual Albums Performed Live Over Eight Consecutive Evenings from April 10 to 17.”

The evening will be comprised of the albums performed in chronological order along with “elaborate staging” “3D images” and (shiver) “new improvisations.”

In case you’re a nostalgic baby boomer or a young technophile:
Tickets are $25.00 and will go on sale to the public on Wednesday, February 22, at 12:00 p.m., only at MoMAKraftwerkTickets.showclix.com. Space is limited. There is a two-ticket limit per person for the series, with each individual order limited to one transaction. Tickets will be distributed exclusively via will call, with photo ID required.

THE ARTIST’s INTENT

Pretty pretty big dick talk talk.

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.

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

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

Olek’s Appeal Verified by My Interview with Jonathan LeVine

JON_LEVINE_120_FPAGE-590x258

“The charges are not that serious. In NY it would have been a really minor incident.”

When I decided to phone the Jonathan LeVine gallery which represents Olek, I knew that they would have been fielding calls all day. Since word had gone live via the Jerry Saltz page on Facebook, three or four articles, including my own, had hit the air overnight. But Jonathan LeVine took my call. It felt good to have an opportunity once and for all to clear up all the doubt, and also to learn where Olek’s representation was in all this.

What follows is a transcript of our phone conversation:

TAM: Did Olek call you right away after the incident happened?
JL: I think I learned about it pretty quickly after it happened. After she got out of jail.

TAM: So when she called you, was she distraught?
JL: No I haven’t spoken to her on the phone. It’s all through e-mail.

TAM: Oh. Hmmm. I see. So you’ve never spoken to her on the phone.
JL: No, I haven’t spoken to her on the phone.But we’re in contact with her all the time. We just represented her in a fair. I mean, she just signed a bunch of prints for us so it’s — it’s definitely her that I’m in contact with if that’s the question.

TAM: [Laughing]Yeah, well that is DEFinitely the question.”
JL: [Laughing] Well it’s definitely her.

TAM: It’s the question that’s on top of everybody’s minds.
JL: This isn’t a hoax. I mean it’s legitimate. And she doesn’t have money and it’s very expensive to deal with the attorney.

TAM: Right. But people are confused, like about how she was able to set up that page which they think looks very elaborate — it has a bunch of links for PayPal and stuff like that— Did anyone advise her that this might not look good?
JL: Well, initially — this conversation was going on for a while– and her attorney was saying that maybe — she shouldn’t say much about it. So her attorney advised her not to  do it. But she didn’t have any other way so her attorney said okay you can do this.

TAM: Do you have any details of her case that she’s not put online?
JL: No. I mean I can’t say anything. I can’ t say anything more than she said about it.

TAM: So you KNOW more you just can’t SAY more.
JL: That’s correct.

TAM: So you are clear about the incident and how it linked to her arrest.
JL: Yes. Yes I am. As a matter of fact I helped her find her attorney through some of my contacts in England.

TAM: So is there a fundraiser maybe coming up?
JL: You know hadn’t actually thought about that. Because this thing initially–we weren’t supposed to talk about it so– it wasn’t even until last night that she posted it.

She was debating about whether she was going to make it live or not. So I guess it went live last night. I come in today and have a whole bunch of people calling me.

TAM: Well it went live last night because it kind of went live on Jerry Saltz’s page.
JL: Yes. That’s right.

I think we’re probably going to give it a couple more days. You know. See what goes on   before I start talking about that–because it just went live and I want to see what happens. And also we need time for a little organization to put togther a fundrasier. I’m not opposed to it at all. Someone asked about it on Facebook and I hadn’t really thouhyt about it all because this all just happened [snaps fingrs] just like that.

I’m just going on the advice of what she tells me to do and what her attorney is telling her to do.

TAM: Right. Well, just now I e-mailed her and she just said I’m tired of this and if people don’t believe me then they can’t help me. But I really think that people are so used to being scammed and this sounds so much like a million of them.
JL: Sure.

TAM: Really and people can’t help but want the details.
JL: Sure….

TAM: And they also want to know who they’re defending.  I mean if the charges are that serious…you know then—
JL: I don’t think that the charges are that serious…but I just think that she was just treated in a certain way.

And in New York, I feel that it would have been a really minor incident. And for whatever reason it turned into something bigger than maybe it should have.

TAM: Wow. That’s horrible for her.
JL: It is. It is pretty horrible. It’s kind of a messed up situation. I really — I don’t  want to say too much because I can’t.

TAM: Right okay… is there anything else, when I write this story up, that you’d like to put out there to clear things up?
JL: “I would just say that it’s legitimate. And she’s just in a situation that’s unfortunate. I guess what happened is she didn’t have any contacts there and so she didn’t have an attorney to call and she didn’t have money for that either so I guess she just ended up with just what was given to her.

TAM: So why didn’t she have any contacts? Is Olek that much of a loner?
JL: Well, if you’re in England and you get arrested…and she lives in the US she’s Polish. I don’t even know if she’s been there before. She doesn’t know a lot of people there. And at first maybe she thought is wasn’t going to be that serious either.

TAM: Right. And did they take her cell phone away?”
JL:  I don’ know what they did. I don’t know anything about getting arrested in England.

I can’t really speak for her because I didn’t ask her any of these questions. I didn’t like interrogate her to see what the hell happened. You know it’s more like ‘this is what happened, this is the situation’  ‘oh okay ’ —So I immediately contacted somebody that I know that helped her find a suitable attorney.

TAM: Right I see.
JL: And that’s where she’s at right now

TAM: Well, Jonathan, thank you so much. This has actually cleared up — well, a LITTLE bit …[laughing] it’s still a mystery.
JL: I’m sorry I can’t give you any more information. But I can say that it s legitimate. I can say that here it would have been something minor but –you know– she got a bad attorney and now she is in a situation.

TAM: And is it safe to say that you’re still talking to her about this and about when you can release information?
JL: Yes. Absolutely.

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Postscripts:

The Jonathan LeVine Gallery has posted Olek’s appeal on its site

Updates Regarding Charges and Trial Date

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.

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