On Copyright (Part 2): The Ornithology of Copyright
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. 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” author, and that this turnover and remixing is ultimately good for the culture by introducing new works that would not otherwise had been created. 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)  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, with any discrepancy in size, material, or other distortion serving as an artistic change that serves to differentiate a new cultural artifact. Now in such a case it would certainly be nice to be credited by Mr. Prince, 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. 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.
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.
 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.
 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.
 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.
 And as an artist, I certainly count as “the little guy” in so far as success, influence, and sales of my work stand.
 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).
 Largely because my own career could use the publicity.
 Duchamp excluded.
 Although I would have to concede that a lawsuit appears to be a great way to get the publicity ball rolling.