Sunday, November 23, 2014

US Supreme Court Champions Free Speech. Almost.


I’m starting to think that many in law are just as hypocritical as those in art. If “hateful” speech can be had near funeral processions and anti-abortion protesters allowed to shame abortion-seekers, why can’t we protest on US Supreme Court grounds?


W.A.G.E. Releases Program on Artistic Labor

W.A.G.E. has just launched W.A.G.E. Certification, a paradigm-shifting model for the remuneration of artistic labor.

According to W.A.G.E.,

Certification is a program that publicly recognizes non-profit arts organizations that demonstrate a history of, and commitment to, voluntarily paying artist fees—it is also the first of its kind in the U.S. that establishes a sector-wide minimum standard for compensation, as well as a clear set of guidelines and standards for the conditions under which artistic labor is contracted.

W.A.G.E. worked in dialog with artists, arts organizations, writers, sociologists, labor historians, and critical theorists over the past four years to produce a scalable model that can be applied across the non-profit arts economy in all its variation: from small artist-run spaces struggling to support a single employee to large institutions with hundreds of full-time workers and top salaries in the seven figures.

On a quick glance, the analytical structure and fees seem to be quite reasonable. Good going!



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.


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