Friday, April 19, 2024

I Mean, Why Can’t Corporations Be Artists?

Via quite peculilar at flickr.

Via quite peculilar at flickr.

Here’s an interesting conundrum. If a major petroleum corporation is alleged to “steal” an idea from a visual artist, the artistic community tends to side with the artist. But if it’s one artist “stealing” copyrightable work from another artist, most of the so-called art world tends to side the appropriator (usually the most commercially viable one).

The reason – clearly not a very rigorous one – stems from the fact that in the former example the appropriator is not a Liberal’s darling (and I don’t say this to be flippant or bombastic; the comment is simply borne out witnessing this effect the last decade or so). But what about the latter? That’s the one that interests me. If a visual artist can appropriate for whatever reason, under the guise that any form of appropriation is, per se, fair use, why can’t a corporation do the same? And if everyone’s an artist, why can’t a corporation – which already merits personhood and First Amendment protection, also be an artist? (I am of course here thinking theory and not current law, although under current 2nd Circuit law I’m not sure there’s much of a difference.)

If nothing’s original and we’re all just robotic retards reconfiguring unoriginal content, why does it matter who appropriates, and for what purpose?

Take a look at this example, concerning Kurt Perschke’s Redball Project, via our friends over at Hyperallergic. What say you?

UPDATE: Donn Zaretsky has some thoughts here.


Tags: , , , , , , , , , , , , , ,

Comments: 7

Leave a reply »

  • There is no reason that a corporation can’t be an artist. I know I’m a broken record on this, but the real reason people tend to side with artists in situations where corporations appropriate from artists is that the corporation does so in a manner that involves many copies of the artist’s work (mass production and distribution), whereas, when the artist appropriates from another artist or a corporation, the artist makes a unique object (or a small edition). The Redball example is a bit of a red herring from a copyright perspective because one cannot copyright the idea of taking photos of a big red ball in different locations. But there is still plenty of room, and justifiably so, for moral indignation.

  • Not sure I agree. The Cariou case is clear that it wasn’t one use of one of Cariou’s images, and when objects start to sell at $1M plus, that’s no longer just fine art; it’s a business (unregulated or not). The Redball artist I believe claims copyright over the redball installations and not necessarily over the photographs of a huge red ball in the middle of urban space (as rigorous as that artwork is). Moral indignation I can deal with; the hypocrisy I can’t.

  • stephan

    Well, if we consider art to be speech, then the two examples can implicate different concerns about restriction on the expression. So we should value commercial speech, here the advertisement, less than pure expression, say Prince’s Canal Zone works.

  • Doesn’t this violate the Lanham Act?

  • Stephan,

    Interesting. But is Prince’s speech “pure speech”? I’m curious about this, as I think we very quickly assign any “speech” that any so-called artist makes “art.” That’s a bit disturbing. Thus, why can’t a corporation also be an artist, given that the sale of widgets, as Donn Zaretsky points out, is probably, in my opinion, not dissimilar than selling paintings?

  • Bobby:

    What do you mean, violate the Lanham Act? Can you explain, please?

  • stephan


    I think the argument for art as speech is persuasive. This of course does not preclude a corporation from being an artist, but restrictions on the sale of widgets does not necessarily implicate speech values or copyright. Neither does the sale of paintings for that matter. Restrictions for those can be instituted without restriction the actual speech occurring. If the widget qualifies as speech or as copyrightable subject matter, then sure, the corporation should be considered the artist.

    But this differs from how we distinguish “pure speech” from commercial speech. At least for how we review restrictions on that speech.

  • Leave a Reply
    Your gravatar
    Your Name


Clancco, Clancco: The Source for Art & Law,, and Art & Law are trademarks owned by Sergio Muñoz Sarmiento. The views expressed on this site are those of Sergio Muñoz Sarmiento and of the artists and writers who submit to They are not the views of any other organization, legal or otherwise. All content contained on or made available through is not intended to and does not constitute legal advice and no attorney-client relationship is formed, nor is anything submitted to treated as confidential.

Website Terms of Use, Privacy, and Applicable Law.

Switch to our mobile site