Fair Use for the Rich and Fabulous, Part Deux

Just yesterday I was discussing my recent law review article (co-authored with curator and art historian, Lauren van Haaften-Schick) at PS1’s New York Art Book Fair. Van Haaften-Schick and I were asked by Eva Weinmayr and Andrea Francke, of AND Publishing, to discuss issues of artistic labor, medium, and class, which we address in our article.

I woke this morning to an NPR story on just this topic, where Andrew Gilden, teaching fellow at Stanford University Law School, shares our thoughts. Some of you may remember Gilden, who, with Timothy Greene, co-wrote Fair Use for the Rich and Fabulous. I mentioned it here, citing my blog entry post-Cariou-Second-Circuit-opinion.

The gist of our law review article, as with Gilden and Greene’s article, is not just that judges are, unfortunately, acting as art critics, but more perniciously, that they are doing so using affluence and sales of artworks as sole barometers with which to measure contemporary art practices and thus, fair use. Additionally, what van Haaften-Shick and I point out is the odd fact that those that seem to support this two-tiered fair-use system are mostly artists and curators that more closely align themselves (politically, conceptually, economically) with the likes of Patrick Cariou. Why then the disjunction? Read our article.

You can read and listen to NPR’s story here. If you’re interested in how the 7th Circuit analyzes a fair-use case, check out this story.