Last Tuesday, the U.S. Court of Appeals for the Third Circuit ruled that the depiction of Ryan Hart (a college football player) in a video game was not protected by the First Amendment right to free speech. To acquire First Amendment protection, the video-game manufacturer, Electronic Arts Inc., had to prove that it had transformed Hart’s identity to a certain degree.

“The digital Ryan Hart does what the actual Ryan Hart did while at Rutgers: he plays college football, in digital recreations of college football stadiums, filled with all the trappings of a college football game,” wrote Judge Joseph A. Greenaway Jr., for the majority. ”This is not transformative.”

The Right of Publicity blog thinks this makes perfect sense,

This of course makes perfect sense, as the objective in sports video game programming is to make things as realistic as possible.  In other words, the goal is to transform as little as possible.

Hmmm, if the goal of video games is to transform “as little as possible,” I wonder what this does to the Lion Tattoo case? (Yes, I know that’s a copyright claim situation but a keen reader will note that transformativeness is dispositive in copyright cases as well.)

Via The WSJ.

I’m quoted in this Photo-Eye Blog article by Talia Kosh. Actually, I’m misquoted (and misspelled), but you’ll get the gist. My actual thoughts can be viewed here.

However, I do note that I disagree with Kosh when she states,

Public opinion clearly influenced the appeals court. Therefore, ongoing public opinion and discourse becomes more important than ever in strengthening, clarifying and defining our fair use doctrine and copyright law in general. If we do not engage in such discourse, then we leave it only to the courts of this country to make decisions for us about what is art and the nature of our intellectual property rights.

True, public opinion influenced the Second Circuit, but that doesn’t mean that courts of any kind should give a damn about “public opinion.” If you’re a member of the American public and you care enough about copyright law, then lobby congress to amend the statute. And if you’re a federal judge, simply look at the statute and apply the law; it’s that simple.

Art theft is said by some groups to be an $8 billion a year industry–Van Goghs, Mattisses, Picassos and national treasures fill the ever-growing list of stolen works, and the FBI has a special Art Theft Task Force that has been working to recover the works, sometimes going undercover to root out thieves. Investors like Steven Cohen, Jeffrey Gundlach and other Wall Street financiers have been expanding their collections–and those individual collectors are the most frequent targets for art thieves.

Video available here.

Dave Mustaine

One of my favorite heavy metal guitarists, Dave Mustaine, has a great saying regarding talent: “It’s not the size of the pencil that matters, it’s how you write your name.”

If only we could get over this preoccupation with SIZE in the so-called art world. It’s ironic, I know. I touched upon this fascination with BIG a few days after the Cariou v. Prince opinion, where I noted — among other modes of socio-cultural discrimination — the Second Circuit’s fascination with Richard Prince’s big one and Patrick Cariou’s little one. Artistically, the three male judges highlighted Prince’s large paintings while symbolically they noted Prince’s large wallet.

Here’s my BIG bit from my previous post.

One other aspect worthy of mention is the language used by the two judges in their opinion. The Court’s fascination with size (e.g.- “measuring approximately,” ” several times that size,” “ten times as large,” “Prince’s collages…measure between ten and nearly a hundred times the size of the photographs.”) would have one think we were reading a narration of what transpires in a boy’s high-school gym.

Yes, my friends, phallocentrism is back, and I can now say that I’m not alone in noticing this recent and current fascination with THE BIG ONE.

Paul McCarthy

Just this past Thursday, The NY Times ran an art review by art critic Roberta Smith. In this review, Gladiatorial Combat: The Battle of the Big, Smith compares the escalating battle between BIG galleries, BIG artists, and BIG artworks. I’m tempted to think that Smith is also giving a nod to my own observations regarding size and the Cariou v. Prince Second Circuit opinion. Here’s Smith,

Whatever you think of [Koons' and McCarthy's] exhibitions individually, they provide visual fodder for several prime art world topics: the state of appropriation art in the early 21st century, including the “remade ready-made”; modes of depicting and fabricating figures; and, of course, the effect of the increasing scale of art and galleries on art’s cultural prominence.

The implicitly male mine’s-bigger mentality that has descended on the art world is close to infantile; it afflicts artists, dealers and collectors alike. The bigness guarantees attention, an accessible spectacle. Most people, regardless of how much they know about art, pay attention to something very big, especially if it is accomplished with unusual materials or labor-intensive craft. This is attractive to museums, which need to fill immense atrium spaces with things that draw crowds. At the same time, bigness guarantees exclusivity; it defines art as something only billionaires and oligarchs, not normal people, can possibly own. [Underscore added]

Fascinating, right? How Smith connects size to gender to class: precisely what the three judges in the Cariou v. Prince opted to do, to the benefit of Richard Prince, and with the added element of force of law. Apparently, this preoccupation with BIG has, to my chagrin, not only afflicted those in the art world; it’s also afflicted those in the legal arena.

Apparently, when it comes to masculinity, art and fair use, size matters.

Hyperallergic questions whether or not New York City’s MTA is unfairly targeting street artist, Enrico Miguel Thomas.

There is a legitimate policing function to the MTAPD, but repeatedly harassing a quiet, unobtrusive artist who has dedicated his work to contemplative drawings inspired by New York infrastructure seems a bit excessive. The world’s subway systems are defined by the community of buskers and assorted artists who variously pander to, document, and gently disrupt the commuter tedium.

If you’re in London and interested in art & law, join me, professor Lionel Bently, Prodromos Tsiavos, and The Piracy Project at The Showroom for an afternoon of art, books, piracy, and copyright. With the recent Cariou v. Prince fair use opinion, this will certainly add a bit of fuel to the burning fire. Hope to see you there.

What: A Day at the Courtroom

When: Saturday, June 15, 2013, from 2-5pm.

Where:

The Showroom
63 Penfold Street
London NW8 8PQ

New York-based artist, Arne Svenson, and his “bird-watching” hobby seem to have drawn the ire of some of his neighbors, particularly those that find themselves represented in Svenson’s photographs without their consent. The exhibit is up now at the Julie Saul Gallery in Chelsea.