Friday, October 31, 2014

When it comes to appropriation art, it’s kill ‘em all, let God sort ‘em out!

2ef2519dc51701b6bc5024fee8d021c6Donn Zaretsky agrees with his co-teacher, Amy Adler, that the current fair use doctrine doesn’t favor the rich over poor.

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.


And Still More on Fair Use for the Rich and Fabulous


PDN Pulse adds to the ongoing and growing conversation on whether copyright law, at least as it is applied in the 2nd Circuit Court of Appeals, favors certain appropriation artists over others.

But the argument for transformation doesn’t work in the other direction, i.e., when unknown artists appropriate from better-known artists and then argue that they’ve created a transformative work. That’s because works by famous artists just don’t seem like raw material to juries, judges or average citizens.

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


Is That a Real Velázquez, or Are You Just Happy to See Me?

The Education of the Virgin, 1617-18. Photo: Yale University Art Gallery

The Education of the Virgin, 1617-18. Photo: Yale University Art Gallery

Two experts will battle it out at a symposium in Seville (15-17 October) sponsored by the Spanish bank Santander, which has paid for the work to be restored.

According to the Art Newspaper, “The foremost dissenter is Jonathan Brown, a professor of art at New York University’s Institute.” The proponent is a curator, John Marciari, now the head of drawings at New York’s Morgan Library and Museum, who attributed the work to Velázquez.


Federal Aviation Administration Approves Use of Drones by Filmmakers

"Group photo of aerial demonstrators at the 2005 Naval Unmanned Aerial Vehicle Air Demo" by U.S. Navy photo by Photographer’s Mate 2nd Class Daniel J. McLain.

“Group photo of aerial demonstrators at the 2005 Naval Unmanned Aerial Vehicle Air Demo” by U.S. Navy photo by Photographer’s Mate 2nd Class Daniel J. McLain.

On September 25, 2014, the Federal Aviation Administration (“FAA”) granted applications by numerous companies for permission to use Unmanned Aerial Systems (“UAS”) – more commonly known as drones – for film production on movie sets. This long-awaited move clears the way for filmmakers and others to use these low-cost filmmaking tools. However, a close reading of the FAA decisions reveals a number of restrictions on UAS.

More on the restrictions via Frankfurt Kurnit.


Why Copyright Owes Much to Mark Twain

Samuel Clemens (Mark Twain) poses in his classic white suit, 1905. George Edward Perine, Prints and Photographs Division, Library of Congress.

Samuel Clemens (Mark Twain) poses in his classic white suit, 1905. George Edward Perine, Prints and Photographs Division, Library of Congress.

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 Twain and his promotion of copyright protection here.


Texas Rules Anti-Upskirting Law Unconstitutional

Detail from Fragonard's The Swing (1767). Via Wikipedia.

Detail from Fragonard’s The Swing (1767). Via Wikipedia.

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 had decided photography was protected by the First Amendment, the court went on to deal with the question of controlling a photographer’s thoughts.

“Protecting someone who appears in public from being the object of sexual thoughts seems to be the sort of ‘paternalistic interest in regulating the defendant’s mind’ that the 1st Amendment was designed to guard against,” Keller wrote.

In an 8-1 ruling, the Texas Court of Criminal Appeals said photos, like paintings, films and books, are “inherently expressive” and, therefore, protected by the First Amendment.

Hell, maybe Texas ain’t as conservative as some yanks think.

UPDATE: September 30, 2014

A faithful reader, Phillip Allen, tweets us and comments that the Texas Court did not say that “upskirt” and “downblouse” photos are constitutionally protected. He’s right. In fact, the Court did say that they agreed with Texas that “substantially privacy interests are invaded in an intolerable manner when a person is photographed without consent in a private place, such as the home, or with respect to an area of the person that is not exposed to the general public, such as up a skirt.”

The Court followed by saying that the law, as drafted, did not protect privacy in the least restrictive means, and that there were less restrictive alternatives which “would adequately protect the substantial privacy interests that may sometimes be threatened by nonconsensual photography[.]“

The Court concluded by saying that the current law, “to the extent it proscribes the taking of photographs and the recording of visual images, in unconstitutional on its face in violation of the Free Speech clause of the First Amendment.”

One other thing, Twitter follower dckath seems to think that we “champion” upskirt photos. What we were championing was the Texas Court’s correct reading of this law as overbroad and content-based, and thus unconstitutional.



‘If somebody’s going to profit from this art, copyright may be just the tool for ensuring that that somebody is the artists themselves.’


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.


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