June 15, 2011 - Copyright and Fine Art Presentation Tomorrow at National Arts Club

I hope that you will join me tomorrow night at this event, there is no charge for attendance.


National Arts Club
The Photography Committee Presents

Copyright and Fine Art
Wednesday, June 15, 8 PM

15 Gramercy Park South (east of Park Avenue South @ 20th Street
Fine art and the copyright laws have always had an uneasy relationship. Artists should be free to use their surroundings as raw material for free expression. But shouldn’t artists get paid for their creativity? And what happens when we live in a media world and our surroundings are locked down by copyright? Should an artist have the power to use the courts to seize and destroy another artist’s work? Join us as attorney Ray Dowd takes us on a visually-driven exploration of creativity at the cutting edge and the fate of “appropriation artist” Richard Prince in the ongoing lawsuit with French photographer Patrick Cariou.

Raymond J. Dowd is the author of Copyright Litigation Handbook (West 5th Ed. 2010). He is Co-Chair of the Art Litigation and Dispute Resolution Institute at the New York County Lawyers’ Association. He is an attorney in private practice with Dunnington, Bartholow & Miller LLP a firm with practices in trusts & estates, litigation, copyright, trademark and art law.



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

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