I respectfully disagree. That position is a hedge and all good in theory, but it is tantamount to saying that prison rules impact all prisoners alike. Sure, in theory. In real life there are the bullies and the bullied; the gangs and the unaffiliated.
Don’t get me wrong I’m all for Lord of the Flies, but this is different than saying that artists with financial means don’t selectively identify artists that don’t have access to power and money. Case in point, when was the last time we witnessed a copyright infringement lawsuit between Koons and Prince, or Murakami and Hirst? (As mom used to say, “pick on someone your own size.”)
Without divulging sources, there are appropriation artists who consider the financial costs of potential copyright infringement lawsuits against them as a business expense, especially when advised that the fair use doctrine may not favor a particular appropriation of copyrighted content. In other words, this “business expense” is budgeted in, put aside, as rainy-day money to be used for settlement or to defend a lawsuit. Someone, the artist with money, or the artist with a gallery with money, will foot the bill.
Opinions like the 2nd Circuit’s Cariou v. Prince opinion only heighten this problem by privileging the valuation of art and definition of artist solely on financial and commercial market criteria. Selling art for millions rather than thousands; having a studio in Manhattan rather than Queens; and having collectors like Brad Pitt over John Doe suddenly become factors naturalized as part of the fair use analysis. Copyright’s constitutional provision of promoting progress in the arts is nowhere to be found.
I’ll say this. If current copyright law does negatively impact all artists rich and poor alike, we can credit this clusterfuck to those who argue that all appropriation, regardless of intent, is fair use simply because it’s “art.” With this cute characterization of the nature and history of art and copyright law, we should not act surprised when we’re left with a shoot-first-ask-questions-later lawsuit mentality. Or, as I like to characterize it, kill ‘em all, let God sort ‘em out.