Wednesday, January 19, 2022

Who Needs an Art Critic: Law and Art Criticism, Part V

Who Needs an Art Critic: Law and Art Criticism, Part V

Shepard Fairey’s “Hope” poster has done more for art, culture, and law than simply bringing together the froth of disenfranchised young voters. In fact, Fairey’s “Hope” poster campaign has reminded us (similar to Koons) of the ongoing implicit prejudice by artists and art educators against certain types of creative individuals: in Fairey and Koons’ case, journalism and commercial photographers. This is more appalling if one realizes that this prejudice toward other traditionally non-art practices has been, in theory, subverted and critiqued by critical theorists and their progeny in both art schools and art institutions. Why is the photographer who took Obama’s picture less of an artist than Shepard Fairey, and why is Art Rogers, the photographer who took the picture of couple holding nine puppies, less of an artist than Jeff Koons. If art historians, art critics, and art professors are unwilling—perhaps for hypocritical reasons—to speak out about these issues then yes, we do, and we must, rely on the discourse and practice of law to do so.

As an example of someone who has both lost and profited from law, Jeff Koons was correctly informed by a federal court of the restrictions concerning the unlawful taking of someone else’s property (the Art Rogers nine-puppies image), yet also reminded by the same federal court fourteen-years later of laws’ allowance to lawfully take someone else’s work for his own creations (Andrea Blanch’s photo for Gucci). On a more recent note, Patrick Cariou’s copyright infringement lawsuit against Richard Prince may do what no art historian could do: force an interpretation of Prince’s work that would negate the continued argument by Prince and certain critics and historians that Prince’s work still falls neatly in line with appropriation and post-modernist strategies, thus effectually killing any lazy semiotic reading of cultural criticism inherent and/or intended by Prince. Why these legal issues are excluded from the interpretation and understanding of cultural production is unclear. Perhaps it is the old fashioned fear of law, judges, lawyers, and juries. Or perhaps it is the continued knee-jerk reaction to law (written or enunciated) driven by ignorance.

Law gives us what art has been afraid to grant and foster: liberty and freedom without fear of retribution. For example, the Supreme Court of the United States has honed a well-balanced and at times hyper-controversial reading of our First Amendment, particularly its free speech clause. As artists we cannot hypocritically raise the free speech cry when an artist spray paints a wall on private property, and yet simultaneously sob when for-profit and nonprofit corporations are granted free speech rights. This First Amendment area is ripe for testing and teasing out.

In their new book, Property Outlaws, law professors Eduardo Peñalver and Sonia Katyal write not about art, but about how the contestation and subversion of tangible and intangible property laws have in fact furthered our understanding and acceptance of property laws. In fact, it is precisely the citizenry’s displeasure (artists and art critics included) with certain laws that drive some of us to voice these distastes using the same medium that we find a nuisance and at times even abhor. That medium is of course law: law as medium, discourse, and practice.

The question remains: why are art and art criticism afraid to foster a contentious, robust, and vibrant space where ideas–political and nonpolitical alike–can be fought out without fear of ideological retribution? Is it that art is afraid to critique itself, in the truest sense of the word? Is art and art criticism afraid to uncover, and therefore reveal, that it is, and in fact has been, always aligned with the same “forces” it portended to abhor? It is clear that if art is unwilling to do so, it will be law as its own artistic practice that will be called upon to do so.

The End.


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  • Cyclotron

    Law is wholly unsuited to serve as a framework for art criticism. Our present IP laws are a confused mixture of different philosophies. These laws were put in place over a long period of time by actors with radically different motivations, starting in 1709, and at best they are a simplistic, ad hoc response to the complexity of authorship. A concept as flimsy as copyright can only make things in the artworld worse. I think a better idea would be to refer to philosophies that underlie people’s opinions on intellectual property (e.g., natural rights, the nature of property etc.)

    You would never find scientists applying the Daubert standard (in the Federal law of evidence) applicable to evidence to their own work. The Daubert standard is used to determine what is and what is not science, but it was developed for completely different purposes than for scientists in a lab. It was developed for courts with limited time and limited resources to say whether a certain piece of evidence can be used. IP laws are similarly unsuited to actual art criticism. They were developed for a different purpose, and even worse, have no unified philosophical principal behind them.

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