According to Artnews’ Carolina Miranda, it’s because of our good friend, copyright. I like articles like these because in-between thirteen paragraphs of lament and a quote from the free-culture hippies’ guru, Lawrence Lessig, is this little gem,

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.

Well, we know the artist’s intent no longer matters, so how the hell are we supposed to analyze this new copyright infringement situation? Under the Cariou test it seems to us that you’d have to put the original Calvin & Hobbes characters next to these appropriated Calvin & Hobbes characters, and ask yourself whether they look different. Do they? Not really. Not under the post-Cariou standard. Take a look at the Prince appropriation of the Cariou below this Calvin & Hobbes image, which the Second Circuit remanded back to Judge Batts so that she could better assess whether it’s fair use or not (because the Second Circuit couldn’t, as a matter of law, figure out). Does the addition of a guitar and some blue paint “visually transform” the painting, in a way that a “reasonable observer” could confidently decide?

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.

Here’s a nice little tidbit from Blawgletter.

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!

NY Times has an interesting article on this mess, but we’re not sure they quite got the VARA law right. Conservation is an exception, and the artist doesn’t necessarily have to be contacted. Just make sure not to alter or modify the work.

According to The Art Newspaper, Patrick Cariou will ask the 13-judge federal Second Circuit Court of Appeals to rehear the case.

Well, in a sense.

Last month, however, this case made its way to the Courtroom of Minnesota Supreme Court, where Justice Paul Anderson and other justices presided over an appeal before the “Constitutional Court of the People’s Republic of China.” No strange procedural wrinkle brought the case from Beijing to Saint Paul; the proceedings on April 23 and 24 were a moot court exercise, serving as the final exam for Professor Chang Wang’s Chinese law courses at the University of Minnesota Law School and William Mitchell College of Law.

More via Minnesota Lawyer.