Hyperallergic’s Cat Weaver takes a look at the Cariou v. Prince copyright/fair use decision as well as the state of appropriation art post-Cariou. [Disclosure: I am quoted in Weaver’s article.] In her article, Law vs. Art Criticism: Judging Appropriation Art, Weaver comments,

…Cariou v Prince, with it’s harsh consequences to Richard Prince and his Canal Zone works has made us very aware that a whole body of work can be wiped out by a court’s decision that a claim to fair use is invalid, begging the question, can a judge make these decisions about art?

One thing to keep in mind: Judges don’t make “decisions about art” out of thin air. They make these decisions on the information presented to them by both parties (plaintiff and defendant). If one party neglects to introduce certain evidence, or worse, doesn’t think a particular type of evidence important enough, then that is not the judge’s problem.

Overall, Weaver makes some interesting observations and delivers a concise overview of the Cariou v. Prince case, and surprisingly, without sounding the all-too-familiar warning of the death of creativity. As I’ve noted before, what strikes me most about Judge Batts’ decision is its two-pronged function as both a legal decision as well as a refreshing and well-articulated form of art criticism.

Art Asia Pacific has just published a lengthy and detailed analysis of the current state of art vis-a-vis copyright through the as-yet-unsettled case of Chapman Kelley vs. Chicago Park District.

Readers may remember that the essence of the Kelley case consists of whether or not a sculptural installation in a public park, agreed upon by the City of Chicago, can be modified or distorted without the consent of the artist. Background on this case can be read here.

This issues has been put through the Illinois ringer, first with the lofty outcome that the sculptural installation, Wildflower Works, was not sufficiently “original” under US Copyright Law to grant it copyrightability, and thus obtained no moral rights protection under the 1990 Visual Artists Rights Act. This ruling was appealed to the Seventh Circuit Court of Appeals, and after a year and five months of deliberation, the Seventh Circuit effectively ruled that Chapman Kelley’s sculptural installation was not art, but rather a garden organized and planted by the act of nature and God. Once again, lacking the sine qua non of copyright, authorship and fixation, Kelley’s sculptural installation — along with a slew of artworks incorporating natural or organic materials — was gutted of moral rights protection.

Chin-Chin Yap of ArtAsia Pacific comments on both the authorship and fixation analysis of the Seventh Circuit. Regarding authorship:

These statements greatly undermine the domains of land art, bio-art and any other artwork involving the medium of nature. In particular, the Seventh Circuit’s simplistic conception of nature, as well as its failure to clearly articulate the parameters of human creativity in determining authorship, leaves a void of great uncertainty.

As for fixation,Yap poignantly reminds the Seventh Circuit that its role is not to define art or its essence.

The Seventh Circuit’s concern about the difficulty of fixing Kelley’s work is valid, but its analysis is misdirected. The opinion exclusively focuses on the quintessence of Wildflower Works as a “garden”: “the real barrier to copyright here is not temporal but essential. The essence of a garden is its vitality, not its fixedness.” Determining the essence of an artwork isn’t necessary to meet the fixation requirement; either the work is sufficiently fixed or it isn’t.

Yap’s pressing reminder is that current US Copyright Law does not ask whether the creative object under analysis is art or not — it simply asks whether the object is an original work of authorship fixed in any tangible medium of expression.

Yap concludes by reiterating a common concern among artists and certain legal scholars,

Kelley is one of a number of recent copyright decisions demonstrating the myriad areas where art is one step ahead of the law. We are fortunate to live in an era in which groundbreaking artistic developments happen daily, particularly in conjunction with science and technology. Yet it is precisely these innovative or avant-garde art practices that are most in need of supportive legal policies if they are to survive and contribute, meaningfully, in an increasingly commercial and litigious society.

You can read Yap’s essay here. Yap delves into bio-art, earthworks, and other art projects incorporating natural elements. [Disclaimer: I am quoted in this article in favor of Kelley’s position. I have also co-written an amicus brief in support of Chapman Kelley.]

Dutch artist Nadia Plesner is very relieved that a court in The Hague has thrown out a copyright infringement lawsuit that was brought against her by Louis Vuitton. Good news, and probably even better news for all those worried that culture and creativity had come to an end.

Plesner commented,

Today is a great day for art. If I had lost this, I believe it would have caused many artists to cencor [sic] their own work to avoid legal trouble. Now we have won back our freedom to make reference to the modern society we live in.

Via Hyperallergic.

According to The Guardian, about 21 artists are suing the city of Berlin for copyright infringement.

In papers due to be filed at a Berlin court this week, the artists say they …  were offered €3,000 (£2,700) each by Berlin council to recreate their original murals after the site was overhauled for the 20th anniversary of the fall of the wall two years ago. The artists were told if they refused to comply, an urban renewal firm contracted by the council would whitewash their work and get someone else to re-create – or “forge”, according to the aggrieved artists – the originals.

The artists considered the €3,000 (approx $4,500) a measly amount, but would consider recreating their murals for a higher price. The lawsuit is scheduled to be filed today.

We’re wondering if Germany has a “moral rights” law similar to our very own Visual Artists Rights Act of 1990. We’ll find out and update you.

Via The Guardian.

UPDATE: May 12, 2011

Our friends Felix and Terry have provided an answer to my question above. See sections 12-14 of the German Copyright Law. Thanks guys!

Here’s a real interesting (and brief) interview on Typotheque regarding typefaces, copyright, and licensing. The interview is between Jürg Lehni and Erik Spiekermann. Thanks to our good friend Luis Nieto Dickens for sending this along!

My dear and close friend, Donn Zaretsky, over at his blog, mentions Joerg Colberg’s “challenge” to the artworld (where Colberg asks the “artworld” whether stealing a wallet is the same as appropriation), and writes,

Without taking a position on any particular example of appropriation, let me answer his question with a question: What if, after I took your wallet, you still had your wallet? Would it change your view at all?  Would you still call it theft?

Well, as long as the wallet isn’t owned by a biker. But I digress.

I love this hypothetical, straight out of the fictional world that is a law school classroom, seeking to manipulate the reader by proposing an impossibility. Assuming we live in the real world and not a Star Trek episode, there is (currently) no humanly possible way that I can take someone’s Aston Martin and simultaneously leave the Aston Martin’s owner with her car. Absolutely impossible. So, why use this analytical aphrodisiac?

The rabbit in the hat to this argument is this. If I photocopy or rephotograph a copyrighted image exactly as it is, or with little to no transformative change, and use it to make paintings, t-shirts, mugs, postcards, or heck, even three-dimensional sculptures, then what harm is there to the copyright holder of that image? Presumably, none. The original copyright holder still has the image. True, but not so fast. Maybe there is a similarity.

You see, although the original image owner still has her same and “original” image, she has lost some use and rights over her property. How can that be?

Well, we don’t use property law to dissect the above scenario; we use intellectual property law (with the term intellectual being key, meaning that it is, unlike real property, intangible), and thus, we apply copyright’s “fair use” schema and its four non-exclusive factors. The key factor, for me, under this hypothetical analysis, is factor #4 of fair use, market harm (the effect of the use upon the potential market for, or value of, the copyrighted work).

Simply put, the secondary user has taken (to revert back to real property) at least one of the following rights — granted under copyright law — from the original copyright holder: the right to grant permission, the right to potentially gift it (and thus gain the accolades as explained by Marcel Mauss), the right to potentially license the image to the secondary user, the right to potentially sell the image to the secondary user, the right to potentially never publicly display or publish the image ever again, and/or the right of the original copyright holder to potentially make a similar work to that of the secondary user (a derivative right). So maybe there is a similarity between tangible and intangible property: we’re still denying the original rights holder one property right.

But be careful. This tricky little hypothetical is sometimes used by the free culture party when talking about the death of creativity and culture. Their argument is this. That if third-world children, dying of AIDS, could be saved by unlawfully “appropriating” medical patents from Pfizer, then surely that means that appropriationists (or secondary users) are also morally and legally exculpated when taking copyrighted images without consent, or without having to apply current fair use standards under US Copyright law. Let me spell this out for you: the wallet hypothetical and the death/creativity hypothetical are very, very different. In other words, although the tangible-intangible property argument is plausible, the death/creativity one is not. The death/creativity hypothetical provides for two very different factual scenarios (death vs. cultural creation), with different legal doctrines (patents vs. copyrights), and with very different mediums of appropriation and expression (narcotics vs. images).

Regardless, the “what ifs” are fun to play. Heck, I often wonder, “what if I, 5′ 9″, 165lbs, and a 5 seconds flat in the 40-yard dash, could play middle linebacker for the NY Jets?” That’s fun to ponder, but not gonna happen. What does happen is that my friends and I play football at the local park, and we call ourselves the Williamsburg Copyrights — and best of all — I play both middle linebacker (we play a 4-3) and quarterback. Take that free culturists!

Feet First (Prima i piedi) (1990), Martin Kippenberger.

In today’s Art Newspaper, Sheikh Zayed, a professor from the University of Cambridge, writes about the contradictions and hypocrisy of liberals in their attempt to explain why blasphemies against Islam are a valid expression of artistic license.

The same religionists are laughing at liberal attempts to explain why blasphemies against Islam are a valid expression of artistic licence, while certain western legal and moral taboos may be acceptably internalised by curators and by legislation. Yet even in Sweden, just two years ago, the Linköping municipality banned posters for a rock festival that showed Satan excreting on a cross. And in Denmark, the newspaper Jyllands-Posten, which had defended its right to publish cartoons of the Prophet, retreated from its stated intention to publish a cartoon that lampooned the Holocaust. Muslims are not slow to note these contradictions, and to observe with amusement the verbal acrobatics of western moralisers who seek to justify them. [italics added]

Zayed makes a good point. Why allow attacks on certain religious ideologies and beliefs, and yet simultaneously cry for punishment or the silencing of so-called hate speech, racist speech, sexist speech, or defamation? For Zayed, if you’re going to protect the aforementioned, then you’ll have to extend that same courtesy and protection to Islam.

Yet just as more secular vulnerabilities deserve protection, in the form of laws against libel, slander, racism, or Holocaust denial, so too do the no less tender sensibilities of religious believers. To assume that the infringement of secular honour is of moral and legal concern, while religionists must be fair game, is arbitrary and unjust.

What’s fascinating about this position is that it argues for the expansion and extension of law into that of artistic speech, effectively narrowing art’s historical function and reach. However, this may be a good thing. For it is only when a discourse or practice is more heavily regulated, legislated, and controlled that it finds the need to question those same regulations, control mechanisms, and laws. The question, of course, is whether there will be any attempt by artists and the “art world” to resist this “censorship,” or if they will simply react by posting their sentiments on facebook.

More via The Art Newspaper here.