Tuesday, October 13, 2015

ART PAPERS Salon and CLE Seminar: Fine Art and Fair Use: Copyright Law and the Boundaries of Appropriation


On Thursday, November 5, 2015, I’ll be participating in the second panel of a seminar on fair use and appropriation in fine art at Woodruff Arts Center in Atlanta, Georgia, hosted by ART PAPERS. Panelists joining me include Atlanta attorney Andrew Pequignot of The Moore Firm in Atlanta, Georgia State Law Professor and copyright scholar Michael Landau, and Atlanta practitioner James Trigg of Kilpatrick Townsend.

The seminar is ticketed, and attorneys may earn CLE credit by attending, but deeply discounted tickets are available for artists, students, and the public.

To purchase tickets and find the full schedule along with other information, visit here.


Benjamin Buchloh’s Writings Say Much Against Contemporary Appropriation Practices

One of the main battles regarding current appropriation practices concerns the question of artistic intent. I certainly believe–and have been a strong proponent of–artistic intent, especially when it comes to the taking of someone else’s property (the aspect of criticality logically follows intent).

In his new book of collected essays, Formalism and Historicity, art historian and critic Benjamin Buchloh unleashes a critical blitzkrieg on a range of artists, many of which are responsible for the current wave of indolent appropriation practices. In his book review, PacPobric, assistant editor for exhibitions and reviews at The Art Newspaper, notes that Buchloh assaults Jeff Koons, Damien Hirst, Takashi Mukarami and Richard Prince because they “enact an homage to precisely those… corporations that sustain their regimes by enforcing the dictates of a collectively operative pathology.”

Pathological is bad enough. But add tautological art to the mix and we have a very real problem. Some argue that the mere repetition and copying of a preexisting copyrightable work is in and of itself critical. The question isn’t simply, why, it’s more of the, how so? This question is rarely answered, and when it is the answer given is devoid of any grain of thought or intellectual rigor. The answer by the appropriation-per-se-is-fair-use mafia is simply, because it’s art. Tautology at its best? What the mafia really means to say–in not so many words–is more elegantly put by Pobric as “allegory reduced to democratic accumulation: everything is interesting! Everything has something to say!” (Think here the lazy appropriation of Instagram images doused with a few words here and there.)

Artwork and image courtesy of Rebecca Kuzemchak. Copyright, Rebecca Kuzemchak.

Artwork and image courtesy of Rebecca Kuzemchak. Copyright, Rebecca Kuzemchak.

That is bad enough, but unfortunately in our populist academic art world, there’s a solid belief that everyone has something (important) to say. Pobric adds, “This anything-goes pluralism puts strain on Buchloh’s particular brand of pessimism, because outwardly, pluralism sustains a healthy populism: isn’t it a good thing that anything can be art? Doesn’t it mean that we are now all artists or—at the very least—curators?” And, doesn’t it mean that we’re all now art critics?

The state of appropriation art and its relevance to copyright has, unfortunately, also fallen prey to lazy analysis, which, I suppose, is what makes it populist. When everyone can do it, it’s not worth doing. Why the hell spend any time assessing whether the copying of Instagram images, chrome eggs or postcards of puppies is fair use? Because it’s art, you say, and all making is worthy of defending “as art” and–gasp!–free speech, regardless of its critical acumen. Fine, you can have it. Go on ahead and keep replicating objects and images with that mindless grin of yours. You can keep it or sell it. Just don’t call it art.

In the end, as Pobric rightly notes, “this optimism is evidence of a sad nihilism: when everything is worth discussing, there is no nothing left to say.” And when reduced to its lowest common denominator, art ceases to be art and becomes another brick in the wall–junk food for the masses. Art, Pobric argues, cannot be democratic, “Whatever it does for politics, democracy has so far always been a threat to art.” When it comes to some appropriation “artists,” the threat to art could not be more true.


Basquiat Estate Lawyer Orders Website to Remove Nude Photos of Artist

The Basquiat Estate lawyer James P. Cinque reached out to Internet site Animal New York asking it to immediately take down photographs it published in 2014 which depict the artist naked on a mattress. Cinque argues that the images “disparage Mr. Basquiat and are prurient in nature. The photos were taken by Basquiat’s ex-girlfriend,  Paige Powell.

Bucky Turco, who was the owner of Animal New York before the site was shuttered in July, had this to say about the request: ”There’s a reason why lawyers are lawyers and not art critics. The request to remove the photos is absurd. He has no legal standing. Also, anyone who uses the word ‘prurient,’ should never be taken seriously,” he said.

More here.


Tuymans and Photographer Settle Copyright Dispute

Luc Tuymans’s painting A Belgian Politician, 2011 (left), and Katrijn van Giel’s original photograph of Jean-Marie Dedecker.

Luc Tuymans’s painting A Belgian Politician, 2011 (left), and Katrijn van Giel’s original photograph of Jean-Marie Dedecker.

Deciding the law wasn’t the way to fix their dispute, Luc Tuymans and photographer Katrijn Van Giel settled their dispute in a confidential out-of-court settlement.

Van Giel and Tuymans stated that they decided “to settle their dispute, as artists and in an artistic way, rather than to allow it to be settled in a court of law”, and that the photographer “relinquishes her legal action”.


Once Again, Why Artistic Intent Matters


When is a weed a weed, and when is a weed artwork? The remarkably intelligent Judge Posner, of the 7th Circuit Court of Appeals, explains,

 ”But the plaintiff’s claim that the free-speech clause insulates all weeds from public control is ridiculous,” Posner said. “It’s not as if the plaintiff invented, planted, nurtured, dyed, clipped, or has otherwise beautified its weeds, or that it exhibits or intends or aspires to exhibit them in museums or flower shows. Its weeds have no expressive dimension. The plaintiff just doesn’t want to be bothered with having to have them clipped.”

Clearly it’s not just whether the “work” is expressive or not (otherwise, nature would be an artist). It’s also whether the individual did anything to the work and thus intended it to be viewed as a work of art.

More here.


Does the Public Have a Right to Culture?


Does the public have a right to culture? After months of conversations and debates regarding the question of culture and law, a good friend of mine, Gabriel Pérez-Barreiro, the director and chief-curator of the Colleción Patricia Phelps de Cisneros, asked me if I would lead an online debate concerning this same question. I of course agreed and asked five individuals I highly respect to opine on the obviously arrogant and leading question. I chose these five individuals, Lian Amaris, Joanna Montoya Robotham, Donn Zaretsky, Antonio Sergio Bessa, and Molleen Theodore based on previous conversations with them but also primarily because I believed they would bring diverse answers to the prompt question. They did.

You may read my prompt and their responses here, via the Colleción Patricia Phelps de Cisneros website.


Artist Talk: Working, Drawings, and Other Visible Things Not Necessarily Meant to Be Viewed as Art, Fourth Iteration

Image: Frederick Dennstedt, L.A. Dodgers Stadium, Chavez Ravine (2006). Image is used via Creative Commons License, BY-SA 2.0.

Image: Frederick Dennstedt, L.A. Dodgers Stadium, Chavez Ravine (2006). Image is used via Creative Commons License, BY-SA 2.0.

I’ll be giving an artist talk at SVA next Tuesday, Oct. 6th, from 6-7:30pm. I’ll talk about my art & law projects, which focus on the analysis of property and structures through legal and cultural discourse and practices. Come on out; we’ll go out for Malbec after.

When: Tuesday, October 6
Time: 6-7:30pm
Where: School of Visual Arts, Room 101C, 133/141 West 21st Street, NY, NY


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