There is a legitimate policing function to the MTAPD, but repeatedly harassing a quiet, unobtrusive artist who has dedicated his work to contemplative drawings inspired by New York infrastructure seems a bit excessive. The world’s subway systems are defined by the community of buskers and assorted artists who variously pander to, document, and gently disrupt the commuter tedium.

If you’re in London and interested in art & law, join me, professor Lionel Bently, Prodromos Tsiavos, and The Piracy Project at The Showroom for an afternoon of art, books, piracy, and copyright. With the recent Cariou v. Prince fair use opinion, this will certainly add a bit of fuel to the burning fire. Hope to see you there.

What: A Day at the Courtroom

When: Saturday, June 15, 2013, from 2-5pm.

Where:

The Showroom
63 Penfold Street
London NW8 8PQ

New York-based artist, Arne Svenson, and his “bird-watching” hobby seem to have drawn the ire of some of his neighbors, particularly those that find themselves represented in Svenson’s photographs without their consent. The exhibit is up now at the Julie Saul Gallery in Chelsea.

Yep, you heard right.

The Fluxus Foundation has what seems a great art & law exhibition, © Fluxus: Original Copyright Documents, 1963-1967, at their foundation space at 454 West 19^th St.

From their website:

George Maciunas, founder and central coordinator of Fluxus, was an exemplary processor of knowledge. Educated in architecture, painting, art history, graphic design, and musicology, Maciunas’s oeuvre demonstrates incredible diversity. Yet, his multifaceted output is unified by a diagrammatic aesthetic—one that illustrates his analytic mind and sheer meticulousness.

The copyright documents featured in this exhibition are a testament to Maciunas’s scrupulousness. After establishing the Fluxus Headquarters in New York, Maciunas sought copyright protection for Fluxus and its artists to safeguard the group’s interests. He painstakingly registered claims to copyright for every Fluxus work starting in 1963, including George Brecht’s Fluxkit Water Yam (1964), Yoko Ono’s Four (Fluxfilm no. 16) (1966), Albert M. Fine’s Piece For Fluxorchestra(1966), Chieko Shiomi’s Spatial Poem No. 2 (1966), Maciunas’s very own Prefabricated Building System (1965), and much, much more.

Thanks to Lauren van Haaften-Schick for the heads up on this one.

That’s a quote from The Warhol Foundation’s, Joel Sachs, to which The New York Review of Books’ Richard Dorment replies, then “why, in uncertain economic times and when most financial experts consider blue-chip artists like Warhol among the safest investments, has the foundation chosen this moment to sell such an enormous number of works?”

In his article, Dorment wonders if “there is any connection between the closure of the authentication board in October 2011 and the announcement nine months later of the sale of the foundation’s material assets[,]” to which he adds, “I believe there is a connection—in the form of another lawsuit that has had relatively little attention.”

Dorment’s article is available here.

Korean War Veterans Memorial, Washington, D.C. Sculpture designed and copyright owned by Frank Gaylord.

I agree with Donn that fair use can go both ways, but the reason for that is not grounded in the statute; it’s grounded in the fact that judges hastily make fair use opinions based on emotive instincts rather than a rational and reasonable approach to the four fair use factors (which is exactly what happened recently with the Second Circuit catastrophe).

(If you’re wondering what I mean by “emotive instinct,” it’s when judges are eagerly seduced by images and, not wanting to come across as Paleolithic philistines, make a fair use analysis based on the “look” rather than the legal application.)

Thus, a judge’s willy-nilly application of the fair use factors doesn’t mean that fair use (especially pre-Cariou) allows for its unreliable ambiguity. In fact, I believe that fair use could have been clarified in a way that would actually help artists had Judge Batts’ decision — concerning the need to hear an artist’s purpose and intent — been upheld.

Why? Because then all a judge has to do is ask the artist what they intended to “do” (or accomplish, which is pretty much what the first fair use factor asks) with the appropriated work. Under Gaylord, both the photographer, John Alli, and the US Post Office would (assuming they weren’t tempted to lie under oath) tell the truth and explain that their purpose in using an image of the Korean War Veteran’s Memorial was to commemorate the Memorial, which, in my humble fair use opinion, would NOT make it fair use. Why? Because people buying this stamp for .37 cents would be buying it because it depicted the Memorial and not because it depicted some generic-looking sculptures with snow on them or, better yet, because the stamp depicted snow.

Anyway, as I stated in my earlier post concerning Calvin & Hobbes, fair use analysis could have been made much easier. Instead, we are now left with a fair use clusterfuck.

UPDATE: May 16, 2013

Donn replies.

Naturally, there are museumgoers who will occasionally break the rules: a visitor to the Indianapolis Museum recently took pictures all over the building—including galleries that were off limits to photography—and then offered them for sale online. “We had to intervene,” says Anne Young, who oversees rights and reproduction for the museum. This type of behavior, however, is an extreme exception.

Well, my friends, it’s that “extreme exception” that one day will cost that museum a few million dollars, and then the museum will have to deaccession works by Prince, Levine, and Kruger to pay lawyers’ fees.

Don’t get me wrong, I’m all for i-Phones making people feel like Edward Weston. What I am critical of is this belief that because I take a picture of my dinner at Nobu that that somehow propels progress and creativity in Western culture. What it does do, in our current state of cultural affairs, is reaffirm the politically correct notion that everyone deserves a trophy.

So although many in the art world and the art law world are championing the latest Second Circuit flop, what they should be asking is how the hell are we supposed to analyze fair use post-Cariou. This isn’t about chilling speech; it’s about knowing a good thing when you have it. The pre-Cariou test elaborated by Judge Batts simply asked that we question the appropriating artist on what her purpose was in appropriating copyrighted work. Now that that fish has been gutted to the bone, all we art lawyers are left with is uncertainty and guess-work. And when a client is paying us to give some kind of educated analysis, and all one can say is “I really don’t know,” that doesn’t make for good business.

The Second Circuit wrote something like that when it ruled on April 25 that Artist A’s reaping in Artist B’s garden, where Artist A had not sown, counted, as a matter of law, as “fair use” under the Copyright Act of 1976.

Not sure where Blawgletter actually stands regarding this disaster of a decision, but we are very curious what they mean when they say, “…while we don’t disagree with the substance of the majority’s reasoning and decision[.]” Really? What’s there to agree on? The Second Circuit pretty much said that they “know fair use when they see it.” What’s to agree with that ridiculous statement? Does Blawgletter actually like the fact that the Second Circuit just rolled back art history 200 years, not to mention that they relegated artists to the idiot savant bin?

We figure the pictures will help!