Brian Dupont: Artist's Texts

An artist's writings on art.

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.


Written by Brian Dupont

May 29, 2011 at 11:02 pm

14 Responses

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  1. OK, well, there you go. I still strongly disagree, but I doubt I can do much to convince you. I will point out that you have a strange notion of how weakened copyright is going to work. Here are three questions to consider: How in the world would say I, a relatively poor artist, compete with Richard Prince when he steals my work? He has millions of dollars–he can obviously grind me into oblivion if there is no cultural protection afforded. 2.) if appropriating enhances the original markets, why isn’t Sam Abell a multi-millionaire with work in every major museum? I assume that you are also aware that Picasso appropriated styles liberally…who did he take those styles from? Did those artists make more money (while they were alive) or die in obscurity? There’s only so much room at the top and collectors like to pick a name and go with it. Which brings up 3.) yes, collectors buy into the branding of Jeff Koons or the branding of Damien Hirst….but isn’t that more fashion than it is art? Did the shark actually advance culture? It’s basically just a poorly preserved shark–scientists had been preserving animals like that for literally centuries…and Natural History museum attendants had been placing stuffed replicas in dioramas for decades too. Isn’t the person who created the original science toy a thousand times more interesting than the artists who hired a crew of artisans to change it’s scale? You’re completely willing to throw your hat in with artists because that’s how you identify yourself. But I think you’re basically throwing mud in the eye of a lot of other creative people that society already undervalues. Prince, Hirst, and Warhol became targets of lawsuits not because they suddenly became successful, but because they duped collectors into buying somebody else’s work and then kept as much of the money as they could. The Shepard Fairey case is illustrative. Did Fairey immediately acknowledge where he had sourced the image? No. It took motnhs for various third parties to figure it out, and when they mis-identified the image, Fairey went along with it because he thought the image Danziger and the rest fingered presented a better opportunity for Fairey to argue transformation. Meanwhile, he destroyed as much evidence as possible. Sorry, but the people who will thrive in the system you’re describing aren’t true innovators…they’re simply abusive predators who throw their reputation and money around as hard as they can.


    June 1, 2011 at 7:47 pm

    • I think it does stand that we’re going to have to agree to disagree since since neither will convince the other; but I think it’s helpful to clarify the point of the disagreement. I have tried to outline arguments where the fair use of otherwise protected intellectual property is allowed (for free) where the user (“appropriationist” if you like) is either transforming on it or commenting on it as a part of the culture that they live in. If you start with the assumption that no one has the right to use your work for those purposes without either paying for the privilege or “stealing” it, you are staking a claim to how the rest of the world interacts with it. I think I’ve been quite clear that I am arguing for weak enforcement, but also a narrow application of those rights where it benefits the culture as a whole. But in allowing for the benefit to culture, I am not passing a value judgment; I don’t think the law can usefully be used to argue the merits of culture, penalizing what one (or some) may like while limiting others through force of law.

      So while I can’t speak to Sam Abell’s finances, I can say that I don’t find his photo of a cowboy that Richard Prince appropritated all that interesting. It’s a nice photo, but little more. On the other hand the possibilities for art and the comment on mass culture that Richard Prince opened up by re-photographing it and showing it in a gallery context are much more interesting to me. Similarly, I don’t find a mass produced science model to be all that interesting beyond what it is. While I’ll certainly by one for my son when he’s older, I think Hirst’s reversal of the scales from adult to child to a child’s toy of an adult gives me a different experience with its changed context that I was never going to get from the initial industrial design, and one that that designer wasn’t going to provide either.

      In looking at your three questions, I feel that you either missed my point about the context of an artist’s oeuvre and practice in relation to the value of a given artifact, or disagree with it so fundamentally that we will have reached a further impasse. While contemporary art certainly has a great deal to do with branding (and fashion), I think you are mistakenly trying to argue the application of copyright law as a hedge against your own cultural agenda. The Collectors were not duped, and the artists in question did not make it any more difficult for the original authors to sell their own wares. In arguing for freedom of expression, there cannot be a separate law for those we don’t like because of their wealth, arrogance, or (perceived) lack of talent. Everybody should be able to comment on the world around them, without worrying about being able to afford the licensing fees. If there’s a buy-in to cultural critique then the worry you espouse about money dictating culture and limiting dissent will be even more of a reality.

      Brian Dupont

      June 1, 2011 at 10:08 pm

      • First, at the end of the day I agree with some of your concepts. But I don’t think you’ve articulated a test that I can get behind. I’m working on that. With that said, just a few last points:

        1.) You can’t copyright clothes. This is why the fashion industry works the way it does. I think they’ve gotten the raw end on that, but I don’t think the solution they’ve come up with is good for art.

        2.) I see no cultural value in artists branding things that aren’t their own. When I say duped I mean that most of the appropriationist painters follow a simple equation–they tend to mechanically produce pre-existing images and either do that onto paint, or add paint. I say duped because most art school students could do the same at a fraction of the cost (and isn’t this really what Hirst and Koons are doing to produce a lot of their works…they hire younger, more-skilled artists to maximize their profits). The name of the artists adds little to nothing either culturally or artistically as far as I’m concerned. Branding is simply a marketing strategy and has been around a long time. As opposed to the Mona Lisa…or other paintings where given similar materials/technology, few could reproduce the results. Warhol did something fun when he came up with the strategy. But frankly, it’s been done. And even at the time, he wasn’t making anything as complicated or as interesting as any of Duchamp’s pieces….and Duchamp spent the time and effort to make his own work…

        3.) Those cowboy photos sell for way, way too much as far as I’m concerned…Sam Abell continues to make his living, in part,0 as a National Geographic photographer. He’s not living in the Hamptons, like Prince, or buying $11million mansions in the Manhattan. The Guggenheim owns a lot of Prince cowboy shots…I don’t know if they own one Abell, but I doubt it.

        4.) Hirst changed the medium and scale…this is not an innovative idea (and it’s Koons’ primary strategy). Sorry, I think the original model/object is much more interesting and innovative. And really, Hirst has more recently tried to argue he works more like an architect…but architects usually design the maquettes and then let their associates actually build and fill out the building. Hirst isn’t making the “building”…and he didn’t design the “maquette”. What exactly did he do that was so culturally innovative? Put these things in a gallery? That’s what curators do (again, nothing new). Maybe the gestalt has value, but I think it’s fairly minimal. Making one medicine cabinet is interesting. Cranking out thousands is a waste. Some of Hirst’s pieces are more interesting, but the scale pieces I find dull and meaningless.

        5.) I believe in free expression. I don’t believe in subsidizing specific forms of art. The original photographers/painters/designers put their time and money into producing their craft. Why wrench that from them to support the appropriationists? One of the primary sources of income is to license works. Does every time I slap a nude on somebody’s photo constitute transformation and negate their stake? …You know…I don’t think so…


        June 2, 2011 at 12:56 am

  2. I think you -and I mean you Americans- always forget the major aspect of the problem when discussing copyright: It’s not a commercial arrangement or an artificial concept imposed on the market to guarantee whatever you feel that needs guaranteeing.

    Copyright, droit d’auteur for us Europeans, is a FUNDAMENTAL HUMAN RIGHT, explicitly defined as such in the Universal Declaration of Human Rights. Violating it is as unacceptable, criminal and unjustifiable as violating any other right.

    All your considerations avoid tackling this. A serious ommission. I don’t care about the whole art market, its economic consequences, etc. Whatever an artist produces is his and nobody can use it without his permission. Whether the violator makes money with his crime or not is meaningless. If an artist wants to work on some other artists work, it’s imperative he does so without violating his rights. Otherwise he is a criminal. The appropiatir will or will not be taken to court, it’s irrelevant. Obviouly you only take somebody to court, specially in ths US where litigation is so expensiv, if you expect to profit from the investment in a lawsuit.

    You proposal of a “weak enforcement” of the copyright ignores this fundamental aspect of the matter. You discuss all kind of side aspects and issues, but avoid the major point. And I don’t see how you can condone a violation of a fundamental human right arguing it’s done to benefit the community. I’ve heard this argument used to condone illegal executions, torture, colonialism, slavery, lynching, invading Irak, the financial abuses, just about anything. I just can put up whith it.


    June 4, 2011 at 2:08 pm

    • Marc, I must admit that I have not looked into or considered copyright as a fundamental human right. In any of the discussions regarding appropriation, copyright, or fair use, I have not seen it referred to as such, so it would be helpful if you could provide a link the international agreements or statutes you are referring to.

      I am focusing on a very narrow segment of fair use provisions within U.S. law, but I am a bit incredulous that droit d’auteur does not also have a similar provision that allows for the free use of intellectual property by others than the original creator for purposes of parody, comment or critique. My belief is that when an idea (embodied as an artifact) is put out into the culture, an author cannot expect legal protection for the property rights of that artifact without also contributing something back to the culture, in this case the further dialog and critique of those ideas.

      Frankly, my reason for arguing for “weak” enforcement of intellectual property rights is to give greater voice to the individual in dissent against governments or corporations as a small exemption in the law for art and artists will have much larger implications. I see the end result of the absolutist stance you pose as an entrenchment of property rights above all else, which would be an unacceptable limit to human rights in my view. Every human being on the planet must have the right to interact with and comment on the culture they are enmeshed in, and in this regard culture cannot be owned.

      Lastly, if I take the tone of your comment correctly, you mean the last sentence to read “I just can’t put with it.” If you would like me to make such an edit to the comment so that it reads as you intended, let me know.

      Brian Dupont

      June 4, 2011 at 2:58 pm

  3. Brian,

    Just as a quick side-note (not advancing any specific opinions):

    The Berne Convention is the treaty that outlines international intellectual property rights. I don’t think IP is cast as a jus cogens-type argument (fundamental human rights), but the treaty does provide certain moral rights (attribution is one, there are others, also including public display). Contrary to what some of the American artistic community thinks, these rights, in part, have been incorporated into US law by the Visual Artists Rights Act (VARA). That said, copyright is also extended to architecture and a few other areas otherwise not covered by traditional US copyright law (the US adopted the treaty in…1990 I seem to recall), and such artists (non-visual artists) are seen to have the same rights, but they have to enforce those rights through other causes of action than pure copyright claims.

    Although I’m not familiar with the international version of fair use, I believe it exists–see the recent fair use win against Louis Vuitton (hmmm…one of Prince’s key supporters, no? you should note that) by Nadia Plesner (just google her name).

    Also, let me point out that nothing the US government produces is (or can be) copyrighted. Similarly, I don’t think you can sue the government if they appropriate copyrighted material…which is just to say, there’s no fair use issue with our government…at least…


    June 4, 2011 at 4:41 pm

    • Thanks for the clarification and adding the legal details. When I speak of fair use allowing for criticism, it is one component of allowing for the broadest possible rights of expression by the individual. I think it’s safe to say that there is the risk that corporations or governments will exploit whatever statutes are available to further their own interests. The Plesner/ LV case is an example of why rights of comment should not be limited within intellectual property law.

      Brian Dupont

      June 5, 2011 at 8:09 am

  4. The LV/Plesner case is interesting and of note (and I agree with it, because I think Plsener was offering actual commentary…). Like I’ve said, I think actual criticism is an important thing to promote. My biggest problem with your argument is that I think you’re trying to create too broad of a standard. At the end of your argument for authorship, in some senses, I’d suggest that you’re arguing that the existence of a market for stolen property should, in and of itself, justify the ability of the thieves to steal as long as there is the most minimal of transformations of the property (since the object created by the original authors would have no market) and that the original authors are owed nothing in this market. Therein lie my objections. I think the original authors are who need more protection, not the opportunists who happen to have the right social connections. I can’t see any reason for anybody to get an art degree or make art if they know that their classmates or their instructors can minimally change their work and sell the pieces for 100 times the value because the instructor has “changed the context” by the mere facts that they are well known and have rich backers. And meanwhile, the original artist is SOL.

    If any of the top artists actually had something to say (as it stands, it’s the curators, primarily, who are figuring out what content to assign to the work), I think the fair use test, as stands, has enough maneuvering room in it for them to be OK. But, for the moment, none of them have anything to really say (in my opinion–I don’t think Prince’s use of Cariou’s image comments on those images at all–and he openly dismisses Cariou’s work as being trivial and meaningless…so why let him use those specific images?)–so I don’t see a need to reform a law just to give the top-dollar earners easier access engage in their predatory behavior. Plesner’s work has been determined to be fair use. I don’t think Prince will be exonerated on appeal, and I don’t think his work does constitute fair use (or Hirst, or Koons, generally).


    June 5, 2011 at 11:40 am

    • One of the fundamental problems for me is the narrowing of definitions of what constitutes “criticism.” The idea that if there isn’t a direct one to one correlation of “I think X about Y” then the comment isn’t valid is terribly simplistic and limiting. The Plesner example is an easy example because it is so cartoonishly obvious, but I’m arguing for an arena where the broadest possible scope of comment is allowed, and parody isn’t only limited to that of the Looney Tunes variety. I think the Sarah Morris case is actually a good example here. Her paintings present a very formalized argument about specific trends within the art historical canon. It is an argument for those at the apex of understanding of a specialized field, and not necessarily an argument aimed for the general public. I expect there to be space for that kind of discourse as well.

      Similarly, I think your misunderstanding of and dislike for “the art world” makes it near impossible to find common ground. We can’t simply have a standard for what we like and find valuable, and then dismiss the rest. Whether or not I like some of these artists (and in many cases I don’t like work) the limitations you intimate as necessary would be fundamentally limiting to speech and expression as a whole as your attempt to protect “original artists” would actually server as bulwark to corporate or national interests.

      Brian Dupont

      June 8, 2011 at 7:40 am

  5. Well, first, let me say that I am an artist and there are plenty of artists I like (I’ve also done collage and ten years ago I was on the other side of the fair use issue). I love Duchamp (despite the obvious contradiction there–but I love Duchamp for his actual paintings, the large glass, and some of his sculpture…the urinal and some of his other pieces I think, although interesting, weren’t nearly as interesting or innovative). Ad Reinhardt, Ruscha, Magritte, Jasper Johns, Ingres, Renoir…Gordon Matta-Clark, Picabia, Robert Smithson…I admire work from a broad range of artists (though certainly I retain the right to like a few pieces or all…but rarely it’s all). I do however, loathe a number of the major artists working today. Not so much their work (Hirsts’ one thousand years is quite clever and interesting…the rest, not so much…), but because of their practice of stealing from other artists and unrepentantly trying to squash the names of those artists into oblivion (and I do consider natural history diorama creators to be artists…at the end of the day, you can argue all you want that there was no market for these objects until Hirst came along, but I think there’s an unfair competition response in there to be made).

    Now, to a certain extent, some stealing is impossible to get around (and most of it is completely legal). Picasso got away with what he got away with because of what’s referred to as the idea/expression or fact/expression dichotomy in copyright. Copyright only gives authors a limited monopoly on their SPECIFIC EXPRESSION of an idea, not the underlying idea itself. Thus, copyright is supposed to advance the useful arts. In all the talk about fair use, I think a lot of lawyers and artists have failed to grasp or remember this. Copyright has an enormous amount of freedom of expression built into it–fair use is not the only stop-gap. In fact, as far as I understand it, fair use was mostly written as a statute (not the way it started out, but how it was passed by congress) to guarantee that critics, journalists, and educators didn’t have to make new expressions/illustrations of the ideas in order to discuss and critique the underlying ideas. (It also gives some protection to artists if another artists copies a major part of a work and fills in the blanks with minimal effort). Licensing only becomes an issue if you want to utilize the specific expression.

    So when Prince and Hirst and Koons tell me they want access not only to the ideas, but also the expressions…at the end of the day I think they’re just being lazy (Prince, himself, lauded the Rasta paintings because he said he was finally making pieces where he didn’t need an assistant) and greedy (how many cowboy photos has Prince produced…they’re all the same idea, over and over…he even makes later editions of the same work so a photo will be listed as an edition of 2, but he did an edition of 2 in 1998, 2003, 2005, etc…). As I’ve said, Prince wasn’t specifically commenting on Cariou’s work. With all his resources, couldn’t he have taken the underlying Rasta photos himself, or hired somebody to do it?

    I understand people are freaked out a little about Cariou v. Prince, but legal cases are very fact specific. The case is not the death of the contemporary art world…it DOES stand for the proposition that predatory artists who aggressively appropriate from other artists should be prepared to pay for the privilege of using specific expressions.

    With respect to Plesner, I don’t know what else you want…look up the last Supreme Court fair use case (Campbell v. Acuff-Rose Music, Inc.–hey, is that a Hip Hop artist winning a fair use case?)…you’re worried that copyright will be used to stifle criticism…I’m telling you right now that any actual criticism will likely be held fair use. You can write a scathing book about an evil corporation and plaster their images throughout…you can make a retaliatory/parodic song using one of their jingles. All you can’t do is make a copy of an image they own the copyright to, minimally change it and sell it (although certainly in some cases slapping a nude on an image would be parody).


    June 8, 2011 at 9:02 pm

  6. Sorry I haven’t been keeping up with this, I’ve had a busy week.

    I think it’s important to reiterate the scope of these essays: I am working forward from a theoretical position that allows for the greatest freedom for art and artists as a whole. This position runs through many of my writings on this blog that are not related to copyright. In this regard I’ve had to address both the law and specific case examples, but I am trying to articulate broader principles (some which do follow from existing law, granted) that would apply to appropriation as a cultural phenomenon. This does mean that I postulate hypothetical examples of what the extreme end results might be, but I think they flow from incremental changes to the law that are the stakes of each particular case.

    My disagreement with your position is going to remain in what I see as your narrowing definition of art, and how it should be allowed to be practiced. Artists responding to the culture around them should not be limited by having to license the piece of culture they wish to comment on, as a matter of first principle. While it’s convenient to say that artists that you “loathe” should be forced to pay large sums to toiling, under appreciated true geniuses, the fact is that young or unknown artists would suddenly find avenues of comment and critique closed to them by not being able to afford the table stakes. After all, how many of them can afford to remake the images or license them? My argument is against the consequences of limitation that you and others propose as I find them to be ultimately limiting to cultural production as a whole, which runs counter to the spirit of copyright in the first place.

    Brian Dupont

    June 15, 2011 at 7:45 am

  7. I don’t think you’re seeing the forest for the trees, here. You’re concerned with young, unknown artists who don’t have the capital to remake the images or license them. I may not like Prince and Hirst, but my fundamental concern is for the young, unknown artists who spend the capital to make the original expressions, who then have their pieces immediately yanked out of their control. They make the original expressions because they hope to recover that initial investment (and I’m not talking the Hisrt model here, I’m talking Cariou and other fine art artists). I think with the broad fair use standard you’re arguing for is going to have a much worse “chilling effect” (not really the right term, but so be it). It will make artists who have put any time and energy into their work very wary to put their work on the web, let their work be photographed in galleries, or produce books.


    June 19, 2011 at 12:44 am

    • I think the scenario you describe above probably points to the reason that many younger, emerging, or otherwise unknown artists do seem to be either apathetic or sometimes even hostile to appropriation, unless it informs their own practice. However I think this argument is essentially a strawman that plays on the fears and insecurities of unestablished artists without having any basis in actual precedent. It’s the aesthetic equivalent of being worried about a shark attack. It’s a scary thought, but the worry it generates is completely out of proportion to the odds or number of actual incidents.

      Young, unknown artists are not the ones whose work is being appropriated. I think you can argue that if an artist produces a book or has work in a gallery, they are not really unknown. Furthermore in these cases having a documented exhibition or publication history is what allows these artists to stake out their territory and at least defend their work. Here the web is certainly a different case, but I think it’s certain that most young, emerging artists are much more willing to make their work available on the web in the hopes of starting and promoting their work than they are worried that a big name artist like Hirst will appropriate it. The proliferation of websites by young artists (as well as sites that cater to the emerging artist market and try to make a buck off of them) runs counter to your assertion of any possible chilling effect in this regard.

      Brian Dupont

      June 20, 2011 at 11:17 am

  8. I think it’s fairly unreasonable to argue that the number of websites that are currently up indicates that the current copyright laws don’t work and need to be changed. You’re arguing for broadening fair use, not me. I think the current laws DO promote young artists to take to the web. I’m saying that loosening fair use will destroy the incentive to do so.

    At any rate, so many holes to here (Cariou was far from famous when he filed his suit, and Fairey has so many images without attribution…Banksy too…how would you know who is having work lifted?–especially if they can’t file suit…few people would have known where the images had come from).

    But ultimately the straw man argument is just too much. This whole issue has blown up primarily because the Prince case has been held out as a massive failure of fair use…when the reality is that using that case to argue modifying copyright law is much closer to a “shark attack” mentality. I’m done. Best of luck.


    June 20, 2011 at 2:48 pm

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