Fair Use Doctrine Dead? A Fair Use Fridays Moment of Silence for Richard Prince

We gaze in awe at the work of Richard Prince.  This photograph of a Marlboro Man advertisement taken by another photographer broke world auction records for a photograph.  Story here.   You can see that Richard Prince claims a copyright in the photograph that he "appropriated" from Jim Krantz.

My post earlier this week here on Patrick Cariou winning his lawsuit against Richard Prince got the most hits of any post I have ever made on this blog, and in a very short period of time.

The entire contemporary art community will be BLOWN AWAY by Judge Batts' decision denying Prince's use the protection of the fair use doctrine.   This challenges an entire category of art known as appropriation art.

L.H.O.O.Q. by Marcel Duchamp

Others are delighted at Prince's discomfiture.   I am troubled.   Fine art, truly fine art in an art gallery, is a place where a copyrighted work becomes a fetish object, a tribute, a decontextualized thing revealing a new meaning.   The urinal of Marcel Duchamp.   The Brillo Box of Andy Warhol.   Both utilitarian objects made by others and fetishized by the artists.

And look at L.H.O.O.Q. - nothing original in the execution, but the Mona Lisa was in the public domain at the time.   Prince is blatantly stealing.   Plagiarists take the words of others and try to make you believe that they have crafted them.   But Prince's cutouts from advertising, porn and outlaw biker magazines never misled the consumer.  

But somewhere, something bothers me about shutting a highly respected fine artist down completely and burning his works when the first sale doctrine would permit him to buy a copy, modify it and resell it.   When the First Amendment lets even repulsive speech be heard and the contemporary art world says it is art, I have a problem with the government burning it.

To me, an original work of fine art properly labeled as such by a new artist is almost pure speech - or in some way pure idea - even if it includes major appropriations.  Things change when the artwork is widely reproduced.  When the consumers are paying tens of thousands for Prince to take something no one is interested in, put his spin on it, and add value.   Prince's "appropriation" added ten million dollars worth of value to a pile of books.   Everyone knew he didn't create the original.

This is not a question of consumers being defrauded, these are wealthy ultrasophisticates on the cutting edge who are the purchasers - surrounded by the top art advisers and critics -if these people feel that Prince's value added is that great, what is the harm in letting them indulge, as long as Prince legally purchased the original books?   In fact, Prince's prices will probably soar - scarcity and scandal drive art prices up.

From a semiotic perspective, isn't Prince simply holding up a mirror to people who may not want to look at themselves or their art as art in the hands of another?   And if your message is mirror-like, is it less valid?   And if you don't have the verbal skills to articulate what you are doing, is that any less a mirror?

Richard Pettibone's Andy Warhol's Black Bean Soup (1968) (1987)

Damien Hirst Hymn

Vik Muniz, Double Mona Lisa, After Warhol (Peanut Butter & Jelly)

Papeschi's NaziSexyMouse

Or if Prince adds a subtle layer of meaning by decontextualizing the original, so what?  Who is hurt?  When Jacob the Jeweler wants to put extra diamonds on your Rolex, is society really hurt by this?

Brillo shouldn't take the boxes back from Warhol, the Keith Haring subway sketches that were illegal now rightly sell in the galleries, Duchamp probably stole the urinal.    Prince's "thefts" are not so far off those marks.

Here are some of the originals compared with infringements:

Patrick Cariou's reaction?   "Destroying art if you don't like it, that's something you have to think extremely deeply about."  Patrick Cariou to ArtInfo/HuffPost, full interview here.


 http://www.dunnington.com/rdowd_bio.html
 Purchase Copyright Litigation Handbook 2010 by Raymond J. Dowd from West here  

Fair Use Fridays: Art of Packaging Garbage

Thanks to phosita's post here on whether packaging makes a difference for this great vintage Rocketboom video on packaging garbage as art, on the art of packaging, on the art of pricing garbage, on the price of garbage art.    This video is a modern meditation on the Readymade conundrum launched by Marcel Duchamp.


 Purchase Copyright Litigation Handbook 2010 by Raymond J. Dowd from West here  

My Favorite Fair Use Video Mashup: Mona Lisa Descending a Staircase

Fifth Circuit on Corporate Logos, First Amendment, VARA and Copyright, Utilitarian Objects and Ralph the Cactus Planter

http://www.austinchronicle.com/

In Kleinman v. City of San Marcos, --- F.3d ----, 2010 WL 447894 (5th Cir. 2010 Feb. 10, 2010), the Fifth Circuit decided the question of whether Ralph the Cactus Planter, a junked Oldsmobile '88 filled with dirt, planted with cactus and covered with paintings by artists commissioned to include the message "make love not war" was protected by the First Amendment or a work covered by the Visual Artists Rights Act ("VARA").

The Fifth Circuit looked to the Second Circuit's analysis in Bery v. Bery, 97 F.3d 689 (2d Cir. 1996) and adopted Bery's distinction between works of fine art and works of decorative art.   The court found the Junked Vehicle statute to survive intermediate scrutiny under a First Amendment analysis. 

The court found that VARA did not apply, since Ralph was a distinctive corporate symbol of the Planet K business (novelty shops).  VARA excludes "any merchandising item or advertising, promotional, descriptive, covering, packaging material or container."    The court upheld the district court's finding that Ralph was "promotional material" and thus VARA did not apply.

In the court's words:

Irrespective of the intentions of its creators or Planet K's owner, the car-planter is a utilitarian device, an advertisement, and ultimately a “junked vehicle.” These qualities objectively dominate any expressive component of its exterior painting. Appellants concede that the car falls within the definition of the San Marcos ordinance. Moreover, the Eighth Circuit, confronted before Hurley with a wrecked auto that was displayed streetside to remind the public how the owner's son had been killed, had no difficulty finding that the auto's removal under a junked-vehicle ordinance survived intermediate scrutiny. Davis v. Norman, 555 F.2d 189 (8th Cir.1977). When the “expressive” component of an object, considered objectively in light of its function and utility, is at best secondary, the public display of the object is conduct subject to reasonable state regulation. We therefore pretermit “recourse to principles of aesthetics.”

The decision is problematic for artists and lacking in copyright analysis.   A chassis of an car that has been almost completely transformed is not at all a "utilitarian object".

Marcel Duchamp Fountain, 1917 photo Alfred Steiglitz

(courtesy Wikipedia).

The artwork would appear to be a sculptural work and have sufficient copyrightable elements to be protected as such under federal law.  Two painters were commissioned to paint the work.  The court's VARA analysis seems problematic, compare the First Circuit's thoughtful analysis in Buchel v. Mass MoCA, discussed here.   Query also how narrowly tailored the junk vehicle statute really is.

Why put a fence around Ralph?  Can the state really put a fence around every art installation that contains part of an old car?

Cooper Union and Marcel Duchamp

I gave a lecture on copyright and fine art last week at Cooper Union. The audience was an interesting mix of fine art and engineering students and the questions were varied and challenging. I learned more about my art examples - a student corrected me on the source photograph for a Vik Muniz memory drawing, and the program's Director, Robert Thill, happens to be particularly well-informed on Marcel Duchamp's artworks and career.

In my lectures, I cite Marcel Duchamp as the originator of the "Readymade" - which is generally credited with sparking the major debate of "what is art" that characterized the last half of the 20th Century. I show a photograph of the urinal (known as the "Fountain") that Duchamp submitted to an art show, which was famously refused.

Professor Thill referred me to an online journal called: "Tout-fait: The Marcel Duchamp Studies Online Journal, found at http://www.toutfait.com/. He referred me to an article called Marcel Duchamp: A readymade case for collecting objects of our cultural heritage along with works of art. by Rhonda Roland Shearer.

The article and journal is sponsored by the Art Science Research Laboratory on Greene Street. This group has studied all of the objects that Duchamp claims that he simply purchased from mass production and then used as artworks. From the little I read, it appears that Duchamp may have actually constructed the urinal himself, as well as many of the other objects that he claimed he simply found.

In my lecture, I use the Duchamp Fountain/urinal as an example of an artwork which is questionably a work of art and not protectable by copyright, both because it is a useful object and because it lacks protectable original authorial expression. The Tout-Fait journals are fascinating reading, and fascinating to know that Duchamp may have sculpted that urinal, since there was no urinal of that description commercially available at the time. Thanks, Cooper Union!

Appropriation Art and Wikipedia

In preparing for a presentation I gave last week at the National Arts Club on "Copyright and Creativity" I found some great wikipedia entries that were very helpful. The wikipedia entry for Appropriation (art) is found here. Also the Art Intervention entry is found here.

Both movements involve using, modifiying, stealing or vandalizing someone else's artwork. Sometimes litigation ensues.

I have inserted Marcel Duchamps' L.H.O.O.Q. (1919), where he puts a mustache and goatee on the Mona Lisa.

Contemporary artists continue to annoy, harass, steal, disrupt and dismay us. Decades later, their works will be valued and celebrated. My favorite is http://www.whitneybiennial.com/. The artist Miltos Manetas stole the Whitney's name and a very good domain name and used it to build a version of the Whitney's 2002 Biennial that included his web-based artworks. He told the press that he was going to surround the Biennial with U-haul trucks with screens showing web-based art that he likes. He never did, but he created a huge uproar.

The social or artistic value of a work that borrows so heavily from another's work is not always apparent. For example, the "appropriation artist" Richard Prince photographed Marlboro advertisements, took out the wording of the advertisement, and blew up the photographs without any other modifications. Pure copyright infringement? One of his photographs reached a world record for photography when it auctioned in 2005 for over $1.2 million.

The artist Jeff Koons (who recently won a case against a photographer whose image he placed in a painted collage) has similarly caused scandal, litigation, and has eventually reaped tremendous financial rewards for reinterpretations - or outright taking - of works under copyright.