It’s bad enough that copyright litigation isn’t cheap. Add the emotional, physical, and psychological toll it takes on litigants and you have a good recipe for surrender. I talk about this quite a bit with artists who ask me if they should pursue litigation against infringers, or litigation against copyright owners by “free culture” advocates wanting to test (and expand) the fair use standard under copyright law. The answer: according to some litigators, a plaintiff is going to spend not only quite a bit of money, but the time requirements will also drain a plaintiff’s creative output by exhausting her physically, emotionally, and psychologically. Instead of spending time in her studio, an artist will be overwhelmed with e-mails, telephone calls, and meetings with her lawyers, not to mention the discovery phase. If she’s lucky (and I’m being sarcastic here), she’ll spend a bit less time in settlement talks.

Sure enough, and just in time for my next copyright class, the photographer embroiled in the AP-Shepard Fairey lawsuit has decided to drop out of the three-way battle. Mannie Garcia has told the LA Times that “the legal proceedings have ‘taken a toll on [Garcia] personally and professionally. He thought he’d be better suited to focus his efforts on what he knows, taking photographs like the Obama image.'”

The AP has also decided to drop their claim against Mannie Garcia. In case anyone has forgotten, both the AP and Garcia were fighting over the copyright to the now infamous photograph of Barack Obama.

The LA Times also reports that there are settlement talks in the works. The Times article can be accessed here.

UPDATE: August 23, 2010. 5:25pm EST

The Associated Press is very pleased with Mannie Garcia’s withdrawal. The AP’s official statement below.

AP pleased with withdrawal of Mannie Garcia from Shepard Fairey case

The Associated Press is very pleased that Mannie Garcia has withdrawn from the case with prejudice, meaning that he cannot refile his claim against the AP. The AP has not wavered in its belief that Mr. Garcia was a staff photographer at the time he took the image of then-Sen. Barack Obama, that AP properly employed Mr. Garcia, and that AP is the rightful copyright owner of the photo in question. Further, the AP is pleased that Mr. Garcia voluntarily withdrew without any payment or consideration of any kind — this was not a settlement.

In a Court hearing on Monday, Judge Alvin Hellerstein indicated that he would sign the stipulation and enter the order. Also in Monday’s hearing, the judge set both a summary judgment schedule and a trial schedule for the case involving Shepard Fairey. The AP is happy to have these dates set. The AP continues to be confident in its position that the use Fairey made of its photo is not fair use, but one that should have been licensed so as to help ensure the AP’s photographers will be able to continue creating new works. The AP looks forward to resolution whether through summary judgment or trial on the merits. — From Paul Colford, AP Director of Media Relations

Nice (and lengthy) article on the problems with repatriation and art looting during times of war.

Returning plunder to its rightful owner may sound straightforward, but in practice it is extremely difficult, particularly for objects seized in the distant past. Who the ‘rightful’ owner is seems to depend largely on your point of view. The fact is, there is no legal or customary basis to demand the return of anything plundered prior to the turn of the 20th century. Doing so successfully is ultimately a matter of public relations, of convincing whoever possesses the object that giving it back is the right thing to do.

Via HistoryNet.com.

Dan Cameron has very strong feelings about art, especially about Matthew Barney’s Cremaster film cycle. While pondering whether or not to enjoy the lengthy films, Cameron notes:

I was struck by some odd wording in the newspaper listing. Apparently in an effort to gloss over the fact that unlike nearly every other cinematic creation still extant, Cremaster would never, ever be available to the public in DVD or other mass-market formats, the listing cited vague “licensing agreements” as shorthand for something readers shouldn’t waste any effort trying to unravel. For the first time, it occurred to me that the conditions surrounding Cremaster‘s distribution constitute one of the costliest and most pointless blunders in recent art history

Why would a licensed distribution be a costly and pointless blunder? Cameron believes that there’s a large pro-Barney audience wishing to view his works, and that this audience will only grow in time. True enough. Why not make his works available on YouTube and pirated DVDs? To answer this question, we would have to delve into the public/private debate (a bit tired at this point).

However, I’m a bit confused. In reading Cameron’s article I gathered that the fundamental question he is asking is: what is property? I work with visual artists, and the hardest concept for them to grasp is the one of “assets.” This comes of course from art school dogmans, but it does not erode the fact that each artist is entitled (property) to exploit her work as she sees fit. This includes the intellectual property (copyrights, trademarks) as well as tangible property called, art. I understand Cameron’s preoccupation with mass access and the loss of cultural experience by the general public, but in seeing this “issue” raised more and more by more free culture and open source proponents, I wonder why it has been made the norm; the correct way to do or distribute something.

It is ironic that as I type this, NPR is running a story commenting on whether an artist should ever choose money over art. This troubling question of course as we face one of the biggest financial disasters in the last 100 years. Theory is one thing; practice another.There is one remedy should one dislike the manner in which an artist distributes her work: don’t watch or buy it (it’s called “free market”). If the answer to this is that the work is a great testament to the culture of our time, why divorce the “capitalist” aspect of it from its reading? After all, isn’t the commodification and exploitation of it just as much part of it as is the cinematic experience, editing, sound, and point of view?

Thanks to Dan for writing his article, Free Matthew Barney. It gave me an opportunity to comment here.

The Legal Satyricon reported yesterday of another possible sculptural fiasco in Springfield, MA. This one also involves the Visual Artists Rights Act of 1990, which as many of you know gives a visual artist the right to prevent the ” distortion, mutilation, or other modification of the work which would be prejudicial to his or her honor or reputation.”

The current issue revolves around public sculptures in the form of sneakers (you can see them in pictures here). One artist decided to paint a pole-dancer on the bottom of one shoe. However, according to Satyricon, “[O]nce the organizers of the event saw the sole of [the artist’s] sneaker, they freaked — and they spray painted it black. They didn’t call him. They didn’t give him a chance to change it. They didn’t even give him a chance to photograph it. So there is no record of what it looked like. His art is gone.”

I agree with Satyricon in that we cannot make a correct assessment of this issue until we know whether or not the artist, Robert Markey, waived his state and federal moral rights via a written agreement. We’ll keep you posted if we here more. The entire Satyricon story can be read here.

According to the NY Times, a long-running battle between the artist James Turrell and his former London gallery, Albion, has ended in a settlement. This legal fight that raised the possibility of an artist being legally compelled to produce art. What does Turrell have to say about this nightmare? “This was a painful chapter for me. I’m happy it is resolved. Needless to say, I want nothing to do with Michael or any Albion incarnation in the future.” Donn Zaretsky has his thoughts on who really won this battle.

Mary Beard, of the Times Online, explains her frustrations concerning the time and money necessary to obtain copyright permissions to images necessary to produce an academic book or article.

OK — people who write really popular books have picture researchers — battalions of (usually) ladies, who “source” the images and arrange the copyright fees to reproduce. It’s a full time job. Most of the rest of us do it ourselves (though in my case I am lucky enough to have an assistant to share the burden). However the work is organised, next time you pick up an illustrated book, you can reckon it will have taken 8-10 hours to find and get permission for every picture in it.

Her very interesting article, Don’t Do Art History, is not immature and whiny like so much “free culture” diatribe these days, so I do dare say, enjoy it!

This current mess between artist and institution illustrates once again the weakness art faces when confronted by law.

P.S.1 is currently deciding whether or not they will allow one of their exhibiting artists to include an element of her project in her installation. This time, the element is neither material or text, but rather another artist.  Let’s call it a medium then (but not the telepathetic kind).

Artist A.L. Steiner (s0 many abbreviations) intends to invite Ann Liv Young, a P.S.1 persona-non-grata, to be part of Steiner’s installation. Obviously P.S.1 is having a bit of a problem with this given  Young’s previous P.S.1 charade which escalated to near-violent confrontations with other artists. Allegations of censorship have been hurled at P.S.1 curator Klaus Biesenbach, accusing him of castrating young artistic expression.

Aside from the fact that we have seen this before (read: Futurists), what makes this story interesting is not the art or performances themselves, nor the accusations of censorship. No, what makes this story interesting is that it raises the legal concerns an institution such as MoMA P.S.1 had, has, and will have, when confronted with possible legal action from parties related and unrelated to the exhibition.

Young has acknowledged seeking legal advice as to Steiner’s contractual agreement with MoMA P.S.1, which clearly reflects the concerns MoMA P.S.1 has in protecting itself, its employees, staff, agents, attorneys and, well, you get the picture. So perhaps at the end of the day the question is not, will P.S.1 censor or liberate? The true question is, will P.S.1 abide by its contract?

Once again, art as art has shown to bow before law, the mighty monster.

UPDATE: August 31, 2010

The paper of record reports that P.S.1 has agreed to allow Young to perform. Details here.