Friday, December 1, 2023

Are We Really Headed Toward Permission-Based Art Making?

I’ve been thinking about whether or not artistic production is headed into a “permission-based” or “license-based” practice; one which would somehow undermine and increase the cost of artistic production.

Last night, while reading Rebecca Tushnet’s blog entry concerning journalism, the internet, and permission culture, a few thoughts concerning the perceived current threat by copyright owners against creative individuals (artists, photographers, filmmakers, musicians, etc) came to mind. This perceived threat is guised as encompassing (and coming into being as) permission-based and license-based structures which artists would have to abide by in order to produce art works and other creative projects. This fear would be true only if artists continue to give up on the challenges posed by creativity and gave in to facile and lazy intellectual hyperbole. Why then is this threat being promulgated, and by whom?

The spectral fear of this sanctioning system of artistic production comes from an ignorance of two factors necessary to the valuation of art and artists. Those two factors are creativity and originality. Creativity has become synonymous with appropriation, while art has surprisingly bought into the academic belief in the death of originality. The prevailing perception now is that “everything has been done before,” therefore there is no need to even attempt to construe one’s own idea, much less develop a significant and intelligent body of work stemming from years of research and studio-time. Under this rubric, one can only be creative by copying or arrogantly assuming that one can do better than, or make the same statement as, a previous artist in a much better “way.” There’s not much policing of this unfortunate production system, particularly because the population toward which this type of work is being targeted to is of the same mentality and of similar low-expectations. This has nothing to do with education. Professionals and intellectuals of all kinds help to reinforce this Pez dispenser mentality by encouraging the perpetuation and reproduction of popular and immediately accessible art (aka- eye candy).

This threat comes from four entities: romantic artists; law professors; art lawyers; and art education. Romantic artists are those artists which still believe in the age-old notion of the artist as ward of the state, deriving her livelihood from tax-dollars distributed by federal and state governments. Certain law professors expound theoretical ideas about creativity and copyright without having any relation to real legal and artistic practices. Certain art lawyers champion the “testing” of the fair use doctrine and the free-play by “appropriation” artists because they have a financial interest in causing dissent and conflict among creative individuals (in case some have not figured it out, law is an adversarial process that can pay quite handsomely). Art education institutions are also to blame, primarily for not analyzing tired aesthetic and theoretical models taught in undergraduate and graduate art programs. This problem is heightened when one stops to think that when the mandatory Walter Benjaminian “death of the aura” essay is distributed to young artists to read, it is distributed to them by a visual artist who at many times has no true understanding of the German language, let alone German history. Add to this the renewed reinforcement of the old division of labor between artists and non-artists, granting artists a higher status over non-artistic works produced by photographers, monument sculptors, or crafts people.

The ideological effect of lawyers on artists is not obvious. Yet, when artists read certain legal theorists and practitioners who expound a “let culture be free” mentality, a similar and erroneous thought process happens. Artists begin to parrot certain thought patterns and ideas not only unfamiliar to them but, more importantly, having little if any connection with real life and practice.

Lawyers cannot be blamed for perpetuating the “everything has been done before” mentality. Every law student remembers that dreaded and ridiculous first-year legal writing course where every law student is taught to write a client letter, brief, and memorandum in a manner identical to every other law student. This first year of law school is reinforced upon entering the legal profession. “There’s no need to reinvent the wheel” is a common expression heard in law firms and law offices. In his book, The Little Book of Plagiarism, Judge Richard Posner of the Seventh Circuit Court of Appeals agrees, “[L]ittle value is ascribed to judicial originality–sometimes it is actually disapproved, on the grounds that it tends to destabilize law.” And then followed by this gem, “Law professors, too, are less than scrupulous about acknowledging the provenance of their ideas, because originality is not much prized by law professors either[.]” If judicial opinions, legal briefs, and court documents could be copyrighted, one wonders if legal professionals would have a different viewpoint concerning a“free culture” society.

Most fictional writing aside, writing in general lacks the creative factor needed in most visual art. This is perhaps why lawyers and law professors are unable to allocate importance and value to visual art production: they are unable to identify with the emotional trauma visual artists encounter every time they face a blank canvas, an empty room, or the framing of a camera viewfinder. Until romantic artists, lawyers, and legal theorists acknowledge the uniqueness and idiosyncrasy of visual art making, their belief in “free culture” will only propel the bankruptcy of creativity.


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  • Your “Are We Really Headed Toward Permission–Based Art Making?” raises very important art world questions about who controls art education and the system by which professional artists are recognized.

    These issues all fit within our artists’ rights crusade that we believe would easily lead to major reforms that would re-credential artists in our own field. Currently, practicing professional artists have virtually no say in the education or the recognition system in the field.
    Harold Rosenberg in his 1983 book “Art on the Edge: Creators and Situations” observed that artists have been demoted. Art world reforms would correct this monumental error.
    Chapman Kelley

  • […] Ar&#1077 W&#1077 Really Headed Toward Permission-Based Art M&#1072k&#1110&#1495&#609? « Clancco […]

  • […] the perpetuation and reproduction of popular and immediately accessible art (aka- eye candy).“Uma reflexão a propósito de licenças, direitos de autor e produção artistica. […]

  • Amos Satterlee

    I take extreme umbrage to your whole paragraph about creativity and originality. Let me simply point out the entire practice of law is based on appropriation of other’s intellectual content, otherwise known as precedents.

    The notion that a legal regime that was initially intended to promote innovation has been turned on its head is rarely addressed by IP proponents. Come on, life + 70 for a copyright?

  • Amos, while I agree with you that the present term of copyright is too long, I don’t agree with your underlying premise that a strong strong IP regime has turned the motivation to create on it’s head. I think it is safe to say that anyone who wants to write a book or create a film is not seriously hampered today by the existing copyright laws. Site be an example.

  • I will like to add to this argument a series of considerations that, perhaps, at he end, they will bring to the foreground the «aporia» in which we are all immersed when dealing with this issue.

    I will like first to remind all of us that the artists are actually operating within a context that we could, for the sake of clarity, understand as “cultural Darwinism”. I mention this a priori just to frame the rest of my considerations because I think is important to accept the existence of a complex number of factors at play, and that the final outcome and sanctioning of this profession carries the weight of many defeats. It is neither facile nor lazy intellectual hyperbole. It is, like anywhere else, just brutal.

    Art production these days is a very complex endeavor. It is not acceptable anymore to think of this production as the manifestation of an autistic drive that labors in isolation and produces a peculiar type of artifact that, under those conditions, certainly, we should consider highly original and uninfluenced. This kind of production, one that some have attribute to the history of “art brut”, lacks social and historical responsibility. Believe me, I use this term on purpose. It includes that element of responsiveness that ensures the dynamic wealth of a culture because, it is, let’s not forget it, under that entitlement of “relevance” that the art world legitimizes all its products, it is under that entitlement that art finds its role and social function. This responsiveness, this dialectical engagement, is completely dependent, therefore, on a quotational system, one that permits the inclusion of individual opinion because it feeds first from elements already existing in the cultural whole. This responsiveness is expected at all levels. Let me insist, at this point, in a commonly forgotten but completely evident fact: the work of art is ultimately finished by the receptor, and that referential architecture must be, subsequently, securely in place already in that minimum but meaningful exchange otherwise the work would be completely unreadable and innocuous.

    Indeed, one has to wonder why “creativity has become synonymous with appropriation”. Creativity, in its maximum splendor, is by no means a sufficient measurement of worth. We must finally accept that. I would assign relevance a higher coefficient of value here, much higher. Creativity, I risk to think, is in fact secondary because the object of creativity today, let’s not fool anybody, is to find an exploitable niche of relevance. That insistent search means everything today. Although appropriation is a very wide term, we could see that it includes in part that system of the quotational that I mentioned above, and that I think is crucial in the formation of that concept of legitimate intervention that the artists applies when she or he tries to take part in the dynamics of the artistic field. I would say, therefore, that creativity has become synonymous with the quotational since it is the later the one that permits engagement with the issues of bigger culture.

  • Ruben,
    You make a couple of good points: the art market’s insistence on relevance, and the need for a quotational system. However, I do think that allocating, first, the “worth and relevance” of art to the art world (or market) is a bit idealistic. As you say, let’s not fool ourselves. If art has any worth left it is purely that of a commodified asset which is, for all intensive purposes, another asset to be traded and price-inflated. The mere fact that art has not been able to deal with the one system which has, is, and perhaps will always regulate it–that being law–is a prime example of its limited efficacy.

    That aside, if art, in the art world, dictates that is be lent a quotational structure, then I am fine with this so long as we differentiate between the quotational and the copy. Very different. In fact, copyright law (at least in the US), allows quite a bit of latitude for the quotational. I am not insisting on a historical creative “brute” of sorts, but do insist on a rigorous and intellectual acknowledgement of one’s productivity, which may of course include the testing and breaking of laws. It is ironic however, that the quotational artists of today seem to want to cry foul when copyright laws circumscribe their productivity, yet simultaneously they cower back to these same laws when their own productivity is at stake or at risk of being copied for commercial appropriation (here, the ever-present hatred for for-profit corporations comes to mind). As artists, we cannot have it both ways, at least certainly within the US. That position, to me, would be emblematic of the artist as “brute”: the artist as sacred producer of culture.

    There is nothing stopping an artist from testing copyright laws under the guise of art. What is stopping them, I would argue, is the fear of losing capital because of the negative consequences of this testing. And so it is.

  • I was trying to use that concept of «cultural Darwinism» as a way to include all the complex dynamics that are at play when dealing with this issue. A big part of it has always been taken by the commodified universe that we are so ready to acknowledge without much criticism, but not all of it goes through that. I’m not the only one beginning to give up on a totalizing use of market economics. Alvin and Heidi Toffler are already calculating that 50% of our global wealth is created by «prosuming» practices. We all know in what degree that practice has become part of the cultural millieu. Your argument makes perfect sense when dealing with the defense of territories marked by a clear symptomatology of economical success. There is, however, much more done than that. How many exhibitions we have enjoyed in which the artist has labored for free. If the cultural establishment was organized like any other profession we wouldn’t have to witness this types of extreme and debatable legal posturings.

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