Brian Dupont: Artist's Texts

An artist's writings on art.

Archive for May 2011

On Copyright (Part 3): Authors, Artifacts, and Money.

Author’s Note: The ideas explored in the essay began with ‘What Appropriation Means to me and Mine’ and  ‘On Copyright’ Parts One and Two.

Any discussion of appropriation as a valid procedure for making art must also address competing authorial concerns. It cannot be ignored that Richard Prince, Shepard Fairley, Damien Hirst, Jeff Koons, or even Andy Warhol did not attract litigation to their work until a lawsuit looked profitable. As the contemporary art market expands and the price for works by established artists moves north of six figures, I think we can expect more lawsuits regarding intellectual property, especially as other industries of media production struggle to be paid for the content they provide. Put not so subtly, determining authorship determines who gets paid.

The structure of weak copyright I propose allows that an artifact that is transformed by fair use[1] becomes a new work with the transforming author assuming complete authorial rights.[2] This aligns with the intent of copyright law to benefit the culture at large by allowing more work to be available to the public, but my reading runs counter to what I find to be one of the most common arguments against fair use, namely that such weak enforcement against appropriation would lead to a less cultural production as authors would cease working for fear of not be paid for it. I simply do not find this argument convincing, and there is nothing beyond anecdotal speculation to support such an assertion, and even then the “original” author would not be forced out, only forced to compete:  Levels of education have continued to rise, allowing a shift to an economy based on information and creation rather than labor. Simultaneously the culture at large has continued to elevate the celebrity status of all manner of authors[3] across the culture, making attempts at a creative career that much more appealing. As mass culture continues to push ever greater numbers towards producing cultural products there is also a rising population of trained information producers who are streaming out of graduate schools armed with MFAs and looking to break into their chosen field. This creates a much more Darwinian competition within the culture as the monetary resources available cannot support everyone. Thus some will leave to pursue more lucrative avenues, but there are plenty ready to take their place.[4]

Such pressure can be keenly felt in arenas where advances in technology have lowered the technical threshold for entry into the professional ranks; Joerg Colberg makes the case for these effects on photography, but similar effects can be seen in music and film.[5] As competition increases, it only stands to reason that authors would look to maximize any revenue streams they can, and enforcing strong intellectual property rights is a way to do that without actually expending much additional effort. This makes sense both evolutionarily[6] and culturally[7], but it is only a short-term solution. [8]  If said authors are going to continue to survive, it will be for what they produce that is of value; resorting to cultural protectionism only applies pressure to the system in such a manner that will encourage (or outright force) further testing of the limits rather than chastised acquiescence. Instead of being so concerned with controlling all facets of their work’s cultural interaction, they should focus on what is of value that cannot be used by others.

For artists[9], this is not the absolute aesthetic value of any single work[10]. While there will always be some objects that are more desirable than others, the notion of the single masterpiece has eroded and given way to a holistic assessment of the artist’s oeuvre. What provides any given artifact monetary value is its place within that corpus, and the artist’s (continued) engagement with it. Thus if an artifact is copied or appropriated by others, it does not weaken or detract from the original or its markets; such use affirms the cultural importance of the original work and increases its value.[11] When the New York School grappled with Picasso’s influence, it didn’t reduce his influence; it took succeeding generations of investigation that had little to address in his work one way or the other.[12] The work is important within a prescribed context, and the overriding interest of the relevance of that context is to avoid being ignored above all else.

The misconception that the monetary value of any single work follows from its aesthetic value is what prompts those that have had works appropriated to look to the new artifact for licensing fees or monetary damages. Just as parent looking at an abstract painting may think that their kid could do that, these authors see something that looks like their work and think that it would’ve been easy enough to do, and so that they should receive their cut. But just as a toddler or adolescent is not actually going to turn abstraction and the established order of the art market on its ear, the original authors were not going to provide the culture with these works:  Designers were not going to reproduce their packaging on stretched canvas or plywood boxes; the Associated Press was not going to turn a photo for hire into a poster and then wheat paste it across the country as both graffiti and iconic political speech; Patrick Cariou was not going to combine the subjects of his photos with pin-up girls, guitars, and a post-apocalyptic narrative and then blow them up to 10 feet with layers of canvas and gestural brushwork. Even if they wished to, these objects would not be worth much if anything, even if they could find a venue. Cowboys photographed for cigarette ads, science toys for children cast in bronze twenty feet tall, or origami diagrams blown up on canvas and colored in with paint are not displayed in galleries because of what they are, but because of who made them, and what they made in the past, and what they will make in the future. An Australian fisherman or British electrical supplier is unlikely to find a buyer for his taxidermied shark because there is no context that adds value to his artifact and without the authorial context conferred by the artist’s oeuvre, all you’ve got is a decaying shark.[13]

Regardless of court decisions or appeals, appropriation will continue to play a role in cultural interaction and creation. As technology advances and makes it easier for new authors to make and distribute their work, and interact with and appropriate the artifacts of others, the law will have to deal with an ever-increasing number of cases regarding the copyright of intellectual property. These are not now, and will not be, aesthetic arguments. Lawyers and money will continue to be sent by all with interest into the fray as culture continues to become a top export and sector of the economy… hopefully guns won’t be seen as necessary to secure these resources.


[1] See the previous essays in this series.

[2] In arguing for fair use I am primarily dealing with appropriation by artists; these new rights would allow the new author to sell their work and control the copyrights of that artifact, but would not allow them to circumvent the rights of the “original” author. This is enforced by making fair use satisfy requirements of cultural comment, reporting, or parody that is not met by the likes of advertising or design. The reduction ad absurdum argument that non-art users would simply claim to be a kind of art does not strike me as either practical or likely. In this regard any such art practice would still need to operate within the structures of law and behavior of those industries (commercial TV, music, etc); claims to art are not a “get out of jail free” card…

[3] Using “author” in the technical sense I have used in the past essays to stand for the producer of any cultural artifact, from artists, photographers, writers, musicians, actors, directors, and on the line right on down to the level of celebrity for celebrity’s sake found in the lowest rungs of reality TV, god help us all.

[4] I must say I do not find such a migration to be any great loss. Anyone not driven to continue making their work (and finding a way to make it profitable) is likely not making something all that interesting anyway.

[5] Of course this affect also happens in older media like painting or writing, it’s just that for being rather simple technologies that are over 5000 years old, the process has stabilized. Although keep in mind that the market that sells the products of that technology does continue to change.

[6] As they are able to gain more resources with less overall effort.

[7] As they are able to institute and enforce a social order that places a primary concern on their interests.

[8] To say nothing of the cost they inflict on the culture by circumscribing the fair production of others and ultimately limiting cultural output.

[9] Those working as authors within the “art world” or ancillary and related fields, rather than the complete range of cultural producers.

[10] As if such a thing could ever be considered absolute in the first place.

[11] An exception may be made for satire, which if properly executed can puncture the importance of the original and harm the market for the original, but such take downs are rare, and are much more obviously legally protected use anyway.

[12] identified by the point where art turns from “modern” to “contemporary.”

[13] And two million seems steep for just a shark.

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Written by Brian Dupont

May 29, 2011 at 11:02 pm

On Copyright (Part 2): The Ornithology of Copyright

Author’s Note: The ideas explored in the essay began with ‘What Appropriation Means to me and Mine’ and ‘On Copyright’ Part One, and continues in ‘On Copyright’ Part Three.

Art’s commercial interests as commodity poses challenges not faced by academic, educational, or informational interests that are on firmer legal footing regarding fair use; it inhabits ambiguous territory as it often fills many or all of the above functions, depending on the work and intention of the artist. Furthermore, art’s historical link to free speech places it at an interesting legal nexus between copyright and the first amendment. While we may make allowances for artistic vs. commercial intention with the artifact, the gray areas art operates in places a difficult burden on both sides as it remains nebulous and ultimately invites legal clarification.[1] My argument in part one of this essay is that fair use by transformation or critique creates new cultural artifacts with similar rights to their authors as those enjoyed by the “original”[2] author, and that this turnover and remixing is ultimately good for the culture by introducing new works that would not otherwise had been created.[3] The quickest argument cum complaint that is lodged is the “how would you feel if…” appeal, as if I am proposing a set of standards that I (or other proponents of weaker copyright enforcement) think should apply to everyone else. Consider this an exercise in applying a “what is good for the goose is good for the gander” approach.

I certainly am not advocating for the “death of copyright.” A quick look at my website or this blog shows that I specifically claim the copyright for my paintings and my writings; arguing for a weak application of copyright law doesn’t mean that I’m advocating a free for all where anything can be appropriated by anyone else for fun and profit… but at the same time I do not think that authoring a work grants said author exclusive control over all of its cultural interactions. When authors release their work into the culture they must also accept that it has an effect on the culture and may in turn be used or commented on by others as a part of the culture.

Again, the mechanism that allows for fair use is transformation. For instance if this blog was merely turned into a printed book by a third party I would not be defending that as fair use. Likewise shifting an artifact between digital and analog media is not transformative; the argument put forward by some advocates of music and file sharing that said change is enough to warrant fair use protection ignores that they are only shifting between storage media, but the consumption is essentially the same. Text is read, music is listened to, and movies and TV shows are watched. Here art’s occupation of a middle ground of experience and consumption poses problems to the amount of control allowed over an artifact, but ultimately the transformation can be compared against the intent of the original. The difference lies between an attempt at counterfeit or the use as a source, and how the new author puts the work forth. If who is valued as the author has not changed, then the use is likely not fair.

Of course where large sums of money are involved, “fair” becomes a loaded term; in this argument the connotations must be set aside for the benefit of the greater cultural good. Any attempt to set the acceptable use of the law as shield for “the little guy” is misguided; the law cannot function as such and sets the system up for further complications and ultimate failure. The success and intent of copyright to advance cultural innovation will stem from its democratic application, so let’s examine how the quintessential little guy in the art world (me) [4] would react if an artist like Richard Prince (for example) turned his appropriating eye towards my own work.

The largest problem would be the manner and intent of the transformation. As a painter my work is probably harder to directly reproduce than, say a photograph; the physical surface of a painting has an ecriture, depth, and material reality that can’t transfer from reproduction. In that regard, the method and accuracy of copy would comment directly on my original work,[5] with any discrepancy in size, material, or other distortion serving as an artistic change that serves to differentiate a new cultural artifact.[6] Now in such a case it would certainly be nice to be credited by Mr. Prince,[7] but in such a case whether or not he decided to do so may have to do with how he came across my work, and how he perceived it as a source. With most artists working within a framework of appropriation there is little attempt at hiding sources because artifacts are chosen for their anonymity and commonality within their larger visual experience.[8] While it might be galling to see my efforts reduced to mere anonymous source, it would ultimately be my own responsibility to publicize my work.[9]

It must be noted that the current state of my career does put me at an advantage in that my work is not widely distributed, so that any attempt to reproduce it to a convincing level of simulation would almost certainly require my help, and therefore permission. As any work moves further into the culture and increases in popularity the author necessarily looses some amount of control over it. This loss of control increases if the author’s chosen medium intends itself to reproduction; the ease with which authorized copies are (re)produced also make facsimiles easier to mine as raw material. However the same ease of reproduction offers a boon in spotting the intent of someone making use of intellectual property for ends of counterfeit or fair use. The question comes down to “what kind of bird is it?” Is what is being offered being passed as the original, or does it proclaim something new? If the latter, it is beneficial to the larger culture to let it take wing, and see where it might go.


[1] Unlike other writers, I don’t see it as an immediate problem that the courts would render judgments based on intent (this is what they are designed to do in other aspects of law); rather it is the poor application of such decisions that would lead to a constriction of definition (i.e. what is legally allowed as “art”) or poor legislation from lawmakers that is a greater concern to me.

[2] I know, here we go again. This implies a weak enforcement of copyright law where an author is only entitled to enforce their rights with regards to the original artifact, not all subsequent iterations and permutations of it.

[3] Except in the most extreme cases, the application of ecology to culture implies a suspension of value judgments about the content of the contribution as such judgments are almost sure to be entirely subjective.

[4] And as an artist, I certainly count as “the little guy” in so far as success, influence, and sales of my work stand.

[5] In the tradition of Rauschenberg’s Factum I and Factum II this wouldn’t necessarily be an original comment or idea to explore, but that isn’t the standard, and there is value in turning an idea over and continuing to think about it (ahem).

[6] Even this isn’t a new idea; in fact it’s already been applied to Richard Prince’s work.

[7] Largely because my own career could use the publicity.

[8] Duchamp excluded.

[9] Although I would have to concede that a lawsuit appears to be a great way to get the publicity ball rolling.

Written by Brian Dupont

May 23, 2011 at 10:42 pm

Posted in Theory

Tagged with , , ,

On Copyright (Part 1): Towards a Theory of Fair Use.

Author’s Note: The ideas explored in the essay began with ‘What Appropriation Means to me and Mine’ and continues in ‘On Copyright’ Parts Two and Three.

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”[1], 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[2], 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.[3] 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.[4] While this inevitably leads to judges deciding what is fair use,[5] 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[6] (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.[7]

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[8] 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.[9]

Employing a standard of transformation requires that an actual change to or comment on the form or content of the original[10] also allows the original author to maintain his or her ability to monetize their intellectual property.[11] 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.[12] 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.


[1] 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.

[2] Especially the relative differences between copyright, trademark, and patent law that can all theoretically affect legislation over intellectual property.

[3] The United States Copyright Office’s own webpage on fair use advises that “If there is any doubt, it is advisable to consult an attorney.”

[4] 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.

[5] And by extension who gets paid.

[6] 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.

[7] 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.

[8] As opposed to the standards allowed for reporting, excerpts, and scholarship that are more clearly allowed for in the law.

[9] 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.”

[10] 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.

[11] 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.

[12] 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.

Written by Brian Dupont

May 11, 2011 at 8:12 am