On Copyright (Part 1): Towards a Theory of Fair Use.
Following my previous post regarding my thoughts on the Cariou vs. Prince decision commenter “Cruising” has argued some points that I feel require both a more careful refutation and explanation of my point of view. Photo blogger Joerg Colberg has also posed questions about the nature of appropriation in relation to intellectual property that I feel tie into a more general explanation that expands beyond just Richard Prince’s Canal Zone paintings. While my focus is on the artistic rights of both “authors” and “appropriationists”, I will still inevitably need to venture a bit deeper into the details and opinions of the law. In such cases I must profess that I am by no means an expert in this (or any other) area of law, but my intent is to provide a theory of fair use in artistic production rather than a breakdown of the legal details of copyright that would certainly be handled better elsewhere.
Of course the central problem is that fair use is almost designed to be unclear, and decided on a case by case basis. What one side may see as “an anomaly” that “has some major problems in its application of the law” will likely be viewed by the other side as a victory and proper application of the law. While this inevitably leads to judges deciding what is fair use, it is likely a better state of affairs than having legislators attempt to make that decision. There’s a reason the laws and decisions have evolved as they have; anything where subtle twists of intent and reference can change the legal rights of an artifact (be it image or object) will always have people pushing the envelope and probing the margins to see what the limits really are. In this regard, the lack of precedents in prior cases that were settled also provides an ambiguous relation to the law as both sides may see the settlement as a victory.
In working towards an understanding of fair use it becomes important to balance the intent of copyright with a reasoned value of allowing others to use protected intellectual property for free. If the intent of copyright is to encourage innovation and creativity by making sure that the creators are paid for their efforts, then any reasoning for fair use must supply a corresponding value to the culture at large. In focusing on artistic and cultural production I find the balancing value of fair use in the intent of the copyright statute itself and in the responsibility that authors have within the larger cultural ecosystem. As authors put their own creations out into that ecosystem (and expect its protection under the law), they must recognize that their works have an impact on that larger system that may similarly be commented on by others. If the intent of the copyright statue is to encourage innovation, then fair use is the mechanism that allows sanctuary enough for the work of new authors to be made out of the old and promote the growth of the ecosystem as a whole.
In my previous post I pointed to Prince’s transformation of Cariou’s originals by his artistic process. The response that simply changing media is not enough to claim fair use is certainly true, but at the same time that should not grant the original author the right to shepherd the artifact through all its cultural interactions. For all the discussion of Cariou as the “little guy” and Prince as the “bully” making a lot of money for selling his paintings, it would be all too easy for large corporations or governments to use copyright litigation to limit speech they found objectionable or threatening. There is a difference between a cultural interaction and a commercial one. Art occupies a gray area where its commercial interests as commodity poses challenges not faced by academic, educational, or informational interests (that are on less contested legal footing) as it is in somewhat ambiguous territory in serving many of the above functions. Furthermore, art’s historical link to free speech places it at an interesting legal nexus between copyright and the first amendment; that there are (sometimes vast) sums of money exchanging hands over the product does not eliminate the broader interest to protecting free speech. Artifacts and cultural products from The New York Times to most Hollywood major motion pictures all involve large amounts of money going out and coming in as profit. That artists may also be making large amounts of money from works that feature appropriated elements that exceeds that of the author of the source material is not a reason to set a poor precedent.
Employing a standard of transformation requires that an actual change to or comment on the form or content of the original also allows the original author to maintain his or her ability to monetize their intellectual property. In most cases the appropriated artifact was either a mass-produced common object or copied in a manner that does not affect the unique original; the resulting artifact is new, and something that would not have been made by the original copyright holder. These artifacts are the product of work that adds to cultural ecosystem; in this regard authors who claim copyright infringement against transformative works are aligning themselves in opposition to the intent of the copyright statute. While licensing fees do support authors of all types, and the bias that appropriationists could simply license the properties is oft stated, that road has already been shown to be creatively limiting and would set the stage for post-hoc censorship as anyone with a copyright claim to limit art or speech via an onerous license. Art (as opposed to purely commercial ventures) is a different animal, it should no more be licensed and limited than any other form of speech, political or otherwise.
Popular music has already suffered a chilling effect in the face of restrictive copyright control, and it seems that the art world can expect to see more lawsuits, some patently ludicrous, as authors try to control the creative output of others, limit their work’s cultural interaction, or simply make money off other artists interacting with the artifacts that make up their own world. Copyright is meant to foster a roiling cultural interaction that produces new and competing ideas, not partition it off like the aisles and shelves of a Wall Mart.
 It should be clear that the opinions I ascribe to these labels for the purposes of this discussion are far more malleable and varied in practice.
 Especially the relative differences between copyright, trademark, and patent law that can all theoretically affect legislation over intellectual property.
 For instance the exceptions granted to large corporations like Disney who would otherwise have seen certain properties pass into the public domain strikes me as an egregious miscarriage of the intent of the law.
 And by extension who gets paid.
 Used here to describe anything made by an “author,” to cut down on needing to endlessly type out long descriptive phrases that still aren’t really exact enough.
 It should be noted that the music industry appears to have taken a stance that they are much more concerned with not having any precedent established than with winning any particular case. Cases where a fair use defense might go against them are almost certain to be settled or dropped. Any decision that established a broader precedent for fair use would be a much greater setback than the monies paid out in a single case.
 As opposed to the standards allowed for reporting, excerpts, and scholarship that are more clearly allowed for in the law.
 And it should go without saying that large corporations or governments will certainly walk through any loophole that is only opened with the intent of protecting the “little guy.”
 In this regard Sherie Levine’s work is an excellent example of just how subtle such transformation can be. In rephotographing the work of Walker Evans there was little, if any, physical transformation. However her project and exhibition used those images to comment on a male dominated art world and genderized notions of creativity and genius in a manner that completely changed the reading and intent of the works.
 This is the difference between appropriation and stealing someone’s wallet. In Mr. Colberg’s example the owner of the wallet is going to have hard time spending the money that was cut up and glued to Oooga, oooga (21st Century Capitalism). The same would apply if his hypothetical appropriation artist simply shoplifted the paint used to make the painting.
 Often by the mechanism of demanding money from artifacts that use their own works as sources, but that they would not or could not have made. In these cases it strikes me that artists simply are not guaranteed to make a living from their work, and that if they were not suing artists their claims would be filed with nuisance suits.