Sunday, July 12, 2020

How Corporations Apply Fair Use

Yes, there are those that are still crying and lamenting the Cariou v. Prince fair use decision. For those who see the bigger picture, there’s a little article over at Frieze that delves into the aesthetics of corporate advertisements. Thinking about how television commercials borrow ideas from contemporary artists (see the Apple-Marclay example here), Christopher Bedford, Curator of Exhibitions at the Wexner Center for the Arts, does art a great service to intellectual property and art by not conflating inspiration with appropriation or, better yet, bastardizing copyright law.

More importantly, Bedford highlights what many “free culture” lobbyists miss: that if blatant copying without transformation is allowed, it would not only be artists who would profit from this system. Corporations would be free to use artists’ works without consent for the sole purpose of marketing goods and services. One can see it now, Felix Gonzalez-Torres’ candy pieces by Pfizer; Robert Smithson’s Spiral Jetty by Monsanto; and Mary Kelly’s Post-Partum Document by Viagra. Where are the “free culture” lobbyists now?

Bedford’s use of tired critical theory aside, his conclusion does bring to mind the current art world hypocrisy vis-a-vis Richard Prince’s blatant theft of Patrick Cariou’s photographs:

Perhaps these advertisements feel exploitative and dirty not because they represent bad examples of sculptural abstraction or installation art, but because they demonstrate how easily our system of aesthetic values can be generalized, reduced to a formula, and used.

So, remember,  kids, inspiration is not copying, ideas are not protected by copyright, and appropriation still requires transformation. That simple.


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  • As you point out, corporations “steal ideas” all the time and copyright doesn’t prevent that. Some of the “inspired” works look very much like the original. Spiral Jetty wouldn’t be any problem to be “inspired” by if you’re a corporation.

    The free culture “lobbyists” (sic) are pointing out that the transformative use barrier had better be low enough that artists can critique that kind of mis-use of their work.

    So remember, kids, corporate recreation of work changed just enough to work around copyright law as OK-ed by a team of lawyers isn’t “inspiration”, and defining transformative use by artists as something other than creative re-use and alteration sets a very, very dangerous precedent that is strangely also very, very useful to those same corporations.

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