Today, the Associated Press filed their answer, counterclaims and affirmative defenses against Shepard Fairey’s preemptive lawsuit (See the actual court document fairey.ap.cc.pdf). Wired magazine has a great expose and synthesis of the lawsuit.

Texas artist Baxter Orr who reconfigured a Fairey drawing by adding surgeon’s mask.

The nation’s oldest and largest operating news-gathering organization sought unspecific damages from Fairey, who the wire service accuses of misappropriating a 2006 AP photo of Obama when he was a senator from Illinois. Last month, Fairey filed a preemptive lawsuit seeking to have a court rule that his computerized image was a fair use of the photo snapped at National Press Club on April 27, 2006.

“Simply put, the fair use doctrine cannot be contorted to permit Fairey to wholly replicate a photographer’s prescient photograph and exploit it for his own commercial benefit,” (.pdf) the AP wrote in its New York federal counter suit. The AP claims Fairey has generated $400,000 in sales of the image, which has adorned websites, posters, stickers, shirts and buttons.

Additionally, Wired points out Fairey’s hypocrisy of claiming “free expression” for his appropriation of the AP’s photograph and his aggressive prosecution of individuals Fairey believes appropriate his work.

Either way, this isn’t good for visual artists. If Fairey loses the court decision will establish a narrower interpretation of fair use, most likely hitting on and defining the “marketability” and “commercial” factors (which may be a good thing). If Fairey wins, the decision will outline ways in which artists can appropriate images from other artists for commercial purposes without the original artist’s consent. Artist’s lacking in exposure and financial means will grab the short end of the stick. Live by the sword… . Perhaps this is a good thing; it may send artists back to their own creative boards rather than Google images and the front page of the New York Times.

Yoshitomo Nara, a top Japanese pop artist in town for a big gallery opening was busted the night before his show when cops spotted him drawing a smiley face on the wall of an East Side subway station.

From the New York Post:

Nara – whose works portraying doe-eyed, cartoonish children have sold for as much as $1.5 million – was charged with resisting arrest, making graffiti, criminal mischief, possession of graffiti tools and damaging property. He was released after spending the night in jail and will have the charges dropped if he does not get in legal trouble for a year, officials said.

In RiP: A Remix Manifesto, Montreal-based filmmaker Brett Gaylor analyzes the effects of digital media on intellectual property.

The film is ultimately concerned with the question of who precisely owns any given piece of art. When does the public domain distinguish itself from private ownership — particularly in this age of digital distribution and replication? RiP brings these issues to life in an invigorating, fascinating way. Each sequence raises questions about our collective notions of intellectual property, rights and residuals, forcing us to think about and rethink our positions on each issue. (In an appropriate and playful note at the end, the film invites viewers to sample and rework RiP in any way they see fit.)

Focusing on Girl Talk, the Rolling Stones, and Andy Warhol, Gaylor indicates the classic Canadian liberal position in favor of “copy left,” but also highlights what he calls the artistic historical necessity to lift, appropriate and steal. With the recent euphoria over Shepard Fairey’s infringement of the AP’s Obama photograph, this seems like a timely film. More from the CBC.

According to yesterday’s WSJ, some visual artists are better off dead. Well not quite, but better off without their royalty checks guaranteed to them under California law. The Journal summarizes this law nicely:

When a work of art is resold in the state, or by a California resident, the seller must set aside 5% of the gross selling price to pay the artist. The law applies to any resale of $1,000 or more within 20 years of an artist’s death, so long as the sale isn’t between dealers.

That’s right: this applies to any resale, and John Baldessari certainly accepts his checks. Donn Zaretsky has an interesting interpretation of the “by a California resident” section of this law. More from the WSJ here.

Yesterday’s NY Times Business section pointed out a growing trend: individuals launching for-profit companies which aim at curing social ills. This had me thinking of artists and arts professionals who think of the nonprofit model as the only viable structure from which to launch art projects or art spaces.

It seems quite obvious that post-September 2008, it is increasingly more difficult for existing nonprofit organizations with established charitable histories to raise funds, so it wouldn’t make much sense to start a nonprofit organization. The NY Times article is fair in pointing out the pros and cons of each, depending on the mission of the nonprofit organization. However, aside from the benefits of tax-exemption (including in some instances tax-deductible donations), it makes very little sense for artists and some arts organizations to initiate a nonprofit corporation. Among the stumbling blocks in forming a nonprofit are filing time frames (5 to 12 months) for nonprofits; lack of ownership (tangible and intangible property complications); limited (or no) control by founder; organizational history in order to procur certain foundation grants (some require a 3-year operationa history); business limitations governed by organizations charitable mission (nonprofits can only “do” what their mission statement expresses); and in general, limited salary ranges.

There is a need for nonprofit organizations, primarily for those that have at the crux of their vision a desire to intervene in and change public needs. Artists and arts organizations should analyze whether or not this is the proper structure for their vision and their financial future. One other viable option is of course the fiscal sponsorship model.

Via Donn Zaretsky another interesting story concerning art and recent fraudulent transactions. According to the LA Times, Chris Burden and Gagosian Gallery are unable to obtain the 100 gold bars they acquired for Burden’s upcoming exhibition.

From the LA Times:

The gold bars originally purchased for the exhibition — which neither the gallery nor the artist would describe in any detail — have been frozen under an order by federal authorities. Reuters reported last week that Gagosian bought the gold in January from a company owned by R. Allen Stanford, the Texas billionaire accused of perpetrating an $8 billion financial fraud.

Update: The LA Times on why the show has been postponed indefinitely.

Last Sunday’s NY Times covers the ongoing controversy over Luis Jiménez’s Blue Mustang. We had some thoughts on this a few weeks ago.