[caption id="attachment_7608" align="alignnone" width="210"] Samuel Clemens (Mark Twain) poses in his classic white suit, 1905. George Edward Perine, Prints and Photographs Division, Library of Congress.[/caption] On May 7, 1874, Samuel L. Clemens–the American author and humorist known as Mark Twain–wrote to Librarian of Congress Ainsworth Rand Spofford, seeking copyright protection for his pamphlet and its cover design. Twain became so frustrated by literary piracy that from time to time he considered giving up books to write plays, successfully staging versions of “The Gilded Age,” “Huckleberry Finn,” “The Prince and the Pauper,” “A Connecticut Yankee in King Arthur’s Court” and “Pudd’nhead Wilson.” Read more on Mark ...
[caption id="attachment_7596" align="alignnone" width="300"] Detail from Fragonard's The Swing (1767). Via Wikipedia.[/caption] Here we go again with another attempt at defining photography as a mere technological process. State prosecutor, “Photography is essentially nothing more than making a chemical or electronic record of an arrangement of refracted electromagnetic radiation (light) at a given period of time[.]” Hell no, said Judge Sharon Keller of the Texas Court of Criminal Appeals, “The camera is essentially the photographer's pen and paintbrush, ... [a] person's purposeful creation of photographs and visual recordings is entitled to the same 1st Amendment protection as the photographs and visual recordings themselves.” Once it ...
On the heels of my blog entry on why copyright, applied properly, benefits visual artists, there's this article in The Atlantic on graffiti artists leveraging their copyrights against large commercial corporations who appropriate their graffiti images for commercial gain. The more interesting question, to me, is whether the same graffiti (not commissioned murals) also garners moral rights protection.
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 ...
For nearly 30 years, art forger Mark Landis duped dozens of museums into accepting fakes into their collections. His stunts made headlines around the world. But Mark Landis never asked for money so he never went to jail. Now his paintings and drawings are in a touring exhibition called Intent to Deceive, and he's the subject of a new documentary called Art & Craft. On NPR.
Jason Williams, a reputed tagger who was paid $1,000 to be a featured “guest artist” at a self-described graffiti art store, was arrested at the 33rd Graffiti Art Store this past weekend after police authorities found him carrying tools used in tagging.
Williams, who was on probation and goes by the name REVOK, was appearing Sunday as the guest of honor at the 33rd Graffiti Art Store, said Sgt. Augie Pando of the Los Angeles County Sheriff’s Department. Williams was arrested on suspicion of illegally possessing vandalism tools, a counterfeit Los Angeles Police Department badge, and receiving stolen property.
Two Utahns, a 65-year-old Cottonwood Heights man and a 29-year-old woman from Saratoga Springs, were charged Wednesday with trying to sell fake Warhols to a collector by passing them off as real.
According to legal docs, the couple agreed to sell another man six Andy Warhol art pieces for $100,000 in February 2008. The man was told that the subject of the art was Mathew Baldwin, purportedly one of Hollywood’s Baldwin brothers. The pieces were signed and dated 1996.
Note to reader: there is no “Mathew Baldwin” and, most importantly, Warhol died in 1987. Both are charged with theft by deception and communications fraud, second-degree felonies. They also face six third-degree felony charges of forgery.
More from The Salt Lake Tribune here.
OMLN aims to assist Web publishers with a broad array of legal issues, ranging from intellectual property matters to defamation lawsuits, as well as business matters.
They already have a list of participating law firms as well as law school clinics. The law firms include Davis Wright Tremaine LLP, Drinker Biddle & Reath LLP, Holland & Knight LLP, King & Spalding LLP, as well as Winston & Strawn LLP. Participating law school include clinics from the University of Southern California Gould School of Law, University of Pennsylvania School of Law, Harvard Law School, and Fordham Law School.
The Citizen Media Law Project is jointly affiliated with Harvard’s Berkman Center for Internet & Society and Arizona State University’s Center for Citizen Media; the Knight Foundation is funding the new initiative.
The new program is designed for independent journalists who write about matters of public interest. For-profit ventures can qualify, as can individuals, but the program has income and revenue restrictions. Single individuals must earn less than $45,000 to qualify, and for-profit organizations must have annual gross revenues of no more than $100,000. Nonprofits must have annual operating budgets of no more than $250,000.
For more information or to see if you qualify, go to OMLN’s FAQ page here.
I’ve been doing some talks and lectures recently at art institutions and art schools, and I’ve noticed an interesting pattern. Visual artists are conflicted as to where they stand in relation to copyright laws. To be more precise, there seems to be two camps: those that favor strong copyright protection for artists and their copyrights, and those that favor either a relaxed form of fair use or worse yet, a “right” to appropriate and lift from copyright owners without any legal repercussions.
As a friend of mine noticed (a bankruptcy lawyer and mathematician no less), this makes complete sense. Those artists who favor stronger copyright laws are making money from their work, many times substantially. Those favoring “free culture” or, “let information flow,” are usually those artists making little to no money from their artwork. The second camp can also be said to be more interested in profiting from the labor of original authors (more on this below).
Hidden underneath this dilemma is a reality that many artists–and art instructors–are reluctant to accept: that a viable artistic practice (at least in the so-called “art world”) is in fact no different than operating a for-profit business. One can veil or name this what one wants, but the reality is that successful artists (success not being defined by revenues alone) face legal and business issues similar to those of a bar owner, an employer, a publisher, an Internet company, a shipping company, etc. Questions regarding copyright and trademark assets will arise, as will questions regarding contracts and protection from personal and financial liabilities. Don’t forget that artists also die, so wills and estates will also be of concern. Most artists now use websites as their online business cards, and these websites come with a slew of legal issues (video, audio, still images, text, hyperlinking, collection of information, etc.).
And yet another factor also aids in the (radical) distinction between both camps. This factor being art education. I mentioned art instructors earlier, and this was for a reason. During my talks and lectures, one question I pose to artists is this: what is the difference between “inspiration” and copying? In other words, why has it become easier for artists to right-click rather than create their own image? Is it that art education now still focuses too heavily on post-modern art and critical theory? Are students still being taught appropriation strategies and theories? Are instructors still teaching Craig Owens and Baudrillard as if this was 1986? I’m not questioning the pedagogical value of these theories or artistic practices. I’m questioning whether these theories, as they are taught, have become crutches rather than tools. I’m wondering if these strategies are facilitating laziness and bankrupting creativity. What Richard Prince and Cindy Sherman did for art and its theory must be historically contextualized
An argument could be made that artists and art students are simply being given the same radical strategies made available to previous generations. That’s a nice beginning, but keep in mind that the United States has never (at least since mid-twentieth century) been a country of radical art. In fact, I would argue that U.S. artists are those that look to ideally question legal structures, and yet just as hastily retreat to legal protection when it raises its ugly head.
So how best to educate artists in both an artistic and legal sense? I’ll have more thoughts on this as my lecture experiences develop.
UPDATE: November 21, 2009
This post is based on Kevin Flanagan’s response to my previous post this week, What Do Artists Want? You may read Kevin’s response under the comments section of this post. It was previously under its own post but I decided to include it here for ease of reference.
A relaxed form of fair use would be a “bad thing” because fair use as it stands out is and should be enough protection for those wishing to avail themselves of this protection. I’m speaking in general here, but an overview of fair use cases seem to indicate many times that either courts do not understand the creative process (in this case visual art) or, they rule through the emotive. Not a good idea at all. Again, the right to appropriate is already set by congress under fair use. What I am saying is that we have a camp of artists that wish to “read into” fair use only when it benefits their project and most likely when they are not making any money from their projects. At this point it’s not so much about fair use, it’s more a distorted form of civil rights.
Kevin, you are doing exactly what I describe above. You are substituting emotions for reason. I did not say that artists cannot or should not be inspired. In fact, I said quite the opposite. My question to artists during my lectures deals precisely with the inspiration v. stealing divide. There’s nothing wrong with my website being inspired by The Guardian’s website or Joseph Kosuth. There certainly would be if I was simply lifting The Guardian’s Website look and content, or if I made a painting in black and white with painted text defining a painting.
Your third point about the “status quo” is much more interesting. I note that you not once use the word law or regulations in your retort. I’m all for contesting and/or critiquing the “status quo.” Keep in mind though that there is absolutely nothing in the constitution granting visual artists preferential treatment. Law does not care whether you are a doctor, lawyer, banker, performing clown or artist: all are still regulated by our federal and state laws and regulations. If you lease a studio space and decide to hire studio assistants, no matter how radical or “outside the box” you are, you are now acting like a business.
As for “aesthetic” originality and strength, I would like to agree. However, critical and innovative artists are the exception and not the rule. Good or bad I don’t know; I tend to think this is bad myself. But do note that as much as you question the “business” component and aspect of art making, you tend to rely quite heavily on “markets”: “additionally they have to seek out and create new markets rather than jumping on those already in existence and opened up by their predecessors.” Interesting conundrum.
You may be surprised to know that there are businesses with much integrity. I’ll end this reply by telling you what I tell artists that seem to feel the need to bleed radical and subversive tendencies: if your project is to contest and subvert existing laws, you cannot simultaneously cry for its protection when you’re faced with legal repercussions. True free speech does not beg First Amendment protection.
Google Law School? Not quite, but Google has now made it much easier to search legal opinions from United States federal and state district, appellate and supreme courts.
“As many of us recall from our civics lessons in school, the United States is a common law country,” says Google Distinguished Engineer Anurag Acharya. “That means when judges issue opinions in legal cases, they often establish precedents that will guide the rulings of other judges in similar cases and jurisdictions. Over time, these legal opinions build, refine and clarify the laws that govern our land. For average citizens, however, it can be difficult to find or even read these landmark opinions. We think that’s a problem: Laws that you don’t know about, you can’t follow — or make effective arguments to change.”
You can search for specific cases (like Mass MoCA v. Büchel), or topics, like the Visual Artists Rights Act. This should make it much easier for artists (and lawyers alike) to search for legal information without having to wonder about the validity of informaion on other websites. Other great resources and legal search engines (listed on Clancco.com on the lower right hand side) are the Cornell Legal Information Institute and AltLaw.
You can access this information on the Google Scholar.
I’m sure I’m not the only one who noticed the main image in today’s front section of the New York Times. The image (seen above on our site) captures a store in Beijing selling notebooks. On the lower right quadrant is a notebook with a front cover image featuring Shepard Fairey’s “Hope” poster. Aside from obvious proof of global piracy and infringement, a couple of questions come to mind: whose copyright is the young woman in the picture infringing, the AP’s, Mannie Garcia’s, or Shepard Fairey’s copyright? Assuming the Associated Press or Mannie Garcia ends up winning the court battle over Fairey’s use of the AP’s photograph, is Fairey liable for making the “Hope” image available for further global infringement? I’m going to research this, but if anyone knows the answer to the second question, please e-mail me at firstname.lastname@example.org.
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