Friday, April 19, 2024

When it comes to appropriation art, it’s kill ’em all, let God sort ’em out!

2ef2519dc51701b6bc5024fee8d021c6Donn Zaretsky agrees with his co-teacher, Amy Adler, that the current fair use doctrine doesn’t favor the rich over poor.

I respectfully disagree. That position is a hedge and all good in theory, but it is tantamount to saying that prison rules impact all prisoners alike. Sure, in theory. In real life there are the bullies and the bullied; the gangs and the unaffiliated.

Don’t get me wrong I’m all for Lord of the Flies, but this is different than saying that artists with financial means don’t selectively identify artists that don’t have access to power and money. Case in point, when was the last time we witnessed a copyright infringement lawsuit between Koons and Prince, or Murakami and Hirst? (As mom used to say, “pick on someone your own size.”)

Without divulging sources, there are appropriation artists who consider the financial costs of potential copyright infringement lawsuits against them as a business expense, especially when advised that the fair use doctrine may not favor a particular appropriation of copyrighted content. In other words, this “business expense” is budgeted in, put aside, as rainy-day money to be used for settlement or to defend a lawsuit. Someone, the artist with money, or the artist with a gallery with money, will foot the bill.

Opinions like the 2nd Circuit’s Cariou v. Prince opinion only heighten this problem by privileging the valuation of art and definition of artist solely on financial and commercial market criteria. Selling art for millions rather than thousands; having a studio in Manhattan rather than Queens; and having collectors like Brad Pitt over John Doe suddenly become factors naturalized as part of the fair use analysis. Copyright’s constitutional provision of promoting progress in the arts is nowhere to be found.

I’ll say this. If current copyright law does negatively impact all artists rich and poor alike, we can credit this clusterfuck to those who argue that all appropriation, regardless of intent, is fair use simply because it’s “art.” With this cute characterization of the nature and history of art and copyright law, we should not act surprised when we’re left with a shoot-first-ask-questions-later lawsuit mentality. Or, as I like to characterize it, kill ‘em all, let God sort ‘em out.


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  • Veronique Wiesin..

    The Cariou-Prince 2nd circuit opinion did not deny that Cariou is an artist, it granted his use of his own work less protection because Cariou made less money – in other words the court found that Prince was better qualified to exploit commercially the work. Copyright is not about promoting progress in the arts anymore (who believe in progress in the arts these days anyway?) but to promote the progress of economy though the arts.
    In any case, there is no definition of who qualifies as an artist so the recognition is usually based on financial and commercial market criteria (an artist is someone who is making a living out of his/her art). PS: Considering how easy it is to sell art these days (i.e. to be recognized as an artist), and how art is becoming the perfect alibi to infringe the law (defacing property, stealing…), it will be interesting to witness what comes next.
    PS PS: even though the most frequent case is a “poor” artist appropriating a rich and famous artist’s name or work (and not the reverse as in Cariou) it is very rare that you will see a “rich” artist suing a “poor” artist over this (or even making a public statement about it) as famous artists or estates are wary of the backlash and of how the press can be easily played against them (see for instance Lauren Clay who invented that the David Smith estate had asked for her “house arrest” – gaining instant publicity)
    PS PS PS: there was an interesting case (in Italy though) of a big name against another – Giacometti vs Baldessari & Prada. Baldessari decided to 3D scan a Giacometti sculpture at LA MOCA and to adorn the enlargements with props, in spite of a written refusal from the Giacometti estate. The pressure from Prada (a billion dollar international luxury brand based in Milan) was enormous. Well-known curators were called to support Prada, weakening lawyers resigned, the judge who had at first closed the exhibition finally issued a decision praising Baldessari… Money talks, everywhere

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