Here’s another new law review article on Cariou v. Prince, and this time it’s from yours truly in collaboration with art historian and curator, Lauren van Haaften-Schick.

The article is the product of a paper I presented at Texas A&M last year, and which dealt with appropriation art, copyright, and Cariou v. Prince. Rather than provide another article on how the Second Circuit’s opinion went awry, I opted instead to take this writing opportunity to memorialize the numerous conversations I had with Lauren van Haaften-Schick on what this seminal appropriation art case meant for contemporary art, art history, and the current state of artistic production and reception. In essence, what this legal opinion means for those who think art is an intellectual pursuit. I asked van Haaften-Schick if she would co-write this article with me in hopes of putting our thoughts and concerns together in one document.

Thus, this theoretical article is written with the intent of impacting the mindset of those in the arts, particularly those that uncritically align themselves with what I call the “appropriation per se is fair use” movement. Not that those in the law cannot gain from our article. Quite the contrary. We imagine the article as providing another glimpse to those in the law other than the spectacle portrayed on a daily basis by glossy magazines, art journals, and sensationalist blogs.

The article is also not intended to rewrite or much less rehash all that has been written about medium specificity, aesthetic judgment, and labor in art. Instead, the article pinpoints these three main areas so as to highlight how law — when misapplied and leveraged by those with nefarious agendas — can have dire consequences for artists, curators, and writers beyond the walls of a court and auction house.

“In June 2012, Sesame Street introduced Alex, a new character on its online interactive program Little Children, Big Challenges. In the short educational video, Alex admits his father is in prison after skirting questions from his friends on his dad’s whereabouts. What does it say about the United States when one of its most popular early-childhood education programs finds the issue of incarceration widespread enough to incorporate it into its curriculum? Alex is one of approximately 2.7 million American children who have a parent currently incarcerated (one in every 28 children), two-thirds of whom are in for nonviolent crimes.”

Don’t miss this exhibition, To Shoot a Kite, now on view at the CUE Art Foundation in NY City until August 2nd. The exhibition was curated by Yaelle Amir.

Creative Capital interviews Amir on her exhibition and its subject matter.

On the heels of this Guardian article on why fake artworks may just be good enough, now this.

A quick note on The Guardian article. The Walter Benjamin reference is a bit superficial. For Benjamin the aura did rest in the singular object, but it was much more complicated in that the auratic experience rested and relied heavily on space and time. So in effect, I’m sure Benjamin would agree that the aura could also reside in a “copy” or a “fake.”

Here’s proof that sometimes the law says what the law says.

My buddy Donn Zaretsky highlights an interesting tax-law case involving a forgery and the statute of limitations. Probably also a good reminder to check the expiration dates on all foods in your pantry and fridge.

File this under “Great Fucken Argument.”

Here’s a Harvard Law Review note that applies a diplomatic but devastating critique to the Second Circuit Court of Appeals’ Cariou v. Prince opinion.

I won’t bore you with a recap of the case (you should know it by now), but suffice it to say that this note takes a unique perspective on how the Second Circuit went off the rails when they relaxed the definition of “transformativeness.” In brief, the note analyzes how the Second Circuit blurred the previously established line between transformativeness and derivative, yet did “not provide an aesthetically neutral method of distinguishing between the two.”

The tension between derivative and transformative works is not new, but until Cariou, courts had resolved the tension between them by drawing an outer line at whether a work serves a different purpose than the original. By adopting a “same purpose, different meaning” definition of transformativeness, the Cariou court ventured beyond this outer boundary and did not erect another in its place. In other words, there is no clear, workable distinction between the amount of new expression sufficient for copyright protection and the level of new expression, meaning, or message sufficient to render a piece transformative under the Cariou test.

The note also raises the concern that I’ve raised before, that what the Cariou opinion did was to allocate to a judge the role of art critic (essentially arbiters of taste).

…the definition the [Second Circuit] … adopted is still the broadest of any circuit court yet — and is in direct tension with the statutory definition of derivative works. Though any definition of transformativeness necessarily will remove from infringement some number of works that otherwise would have been subject to the copyright owner’s rights, there must be some way to distinguish the two categories if the derivative work right is to have meaning. This problem is particularly acute in appropriation art, a genre that uses prior works as raw material to create new expression. Without a clear standard, judges may be likely to decide according to taste, and artists will have no principled method of conforming their actions to the law ex ante. Future courts would be wise to clarify the contours of these two overlapping doctrines, lest appropriation art be left in uncharted waters, subject to the shifting winds of judges’ artistic appraisals. [bold added]

I think it is safe to say that the Cariou opinion has — in actuality — hurt appropriation artists more than helped them, so a celebratory vibe is a bit too premature. As the note appropriately concludes, “[b]ecause outcomes based on value judgments are difficult to predict, artists will struggle to conform their actions to the law ex ante, and the ultimate outcome may be a chilling effect on the creation of cultural products.”

Yes, a more workable fair use standard for appropriation art is needed.

That’s the theme of the weekend. And all last week.

Much as been written about this issue, mostly against passing such a bill, the American Royalties Too Act of 2014, which is currently pending in Congress and may get its day on the floor tomorrow.

What can one add to the drawbacks of the “ART Act”? Donn Zaretsky makes great points against it, and some for it, based on “fairness.” Neil O’Donnell has some thoughts here. Here’s Rauschenberg’s son opining on why it’s a good thing.

As Donn also points out, I wonder why the cap is set at $35K. Why that low? If the issue is “fairness” and just desserts, then why set a ceiling?

Manuel Noriega: “Hey, I might have been ousted by the U.S. military for questionable governmental practices, but that doesn’t mean you can use my image and portray me like a lunatic criminal, let alone profit from it.”

Or does it? In his lawsuit against Activision, Noriega asserts claims for alleged violation of Noreiga’s common-law right of publicity, unjust enrichment and unfair business practices.