Why Make it Pretty.

As developed nations actually produce and manufacture less and less, the aggressive expansion of intellectual property should come as no surprise. Defunct companies that produce nothing are bought and sold for fantastic sums for only the patents they hold, so that one mega corporation may sue another or compromise their markets or limit their competition. We are in the business of producing plans and ideas, and thus any notion set to paper may have economic value. Scholarship is not above the fray, and it is more than a little sad to see areas of intellectual pursuit that depended on community interaction and spirited discourse limited by an economic bottom line. As I have discussed in the past[1] , fair use should provide a mechanism for intellectual and cultural advancement within the framework of copyright, yet the mechanism and enforcement of the principal in the law is sorely lacking.

This brings us to the utter ridiculousness of the estate of David Smith and the rights management organization VAGA seeking to impose limitations on the works of Lauren Clay. Clay has made miniature, brightly colored papier-mâché works that reference (or copy) Smith’s Cubi sculptures, and when VAGA executive director Robert Panzer told Artinfo.com that “The importance of a work of art can lose its value when people reproduce it without permission. There’s ethical questions, legal questions here.” he’s right, only that he’s completely wrong. The ethical and legal questions raised are concerned with free expression, not any hypothetical loss of value to David Smith’s estate. When he states that Clay is not “familiar with the relevant legal issues.” he’s essentially assuming his own interpretation of fair use to be law:

“What she did was make them look just like the original,” he said. “Are you transforming it to make a new idea? We don’t think it’s transformative enough. She didn’t make enough of a comment. She just changed the medium. She said, ‘Look, I’m going to make it colorful and pretty.’”

So a female artist has taken sculptures from the cannon of art history that are steeped in overt masculinity and stripped them of their bombastic scale and aggressive materiality by rendering them on an intimate scale in common craft materials? This is essentially the art world’s version of satire, which is clearly protected as fair use. In “making them pretty” Clay has taken a specific form and reversed its meaning by simply manipulating material, color, and scale; if that is not transformative I don’t know what is.

Clay’s is not a deep statement[2], but it doesn’t have to be to be protected; satire tends to have a limited shelf life after all.[3] The more troubling issue is that nearly any morphology can be owned[4] and any form or geometry can quickly become off limits. It was easy for many to side against Richard Prince as a wealthy artist poaching from a less known photographer and using his work to sell paintings for millions of dollars; but Patrick Cariou’s case of the little guy was ever only going to be the exception. Here we can see the easy abuse of power that will be the common application of limiting fair use. Appropriation may never result in an artwork that is popularly loved, but is a process and principle ever more important to defend for just that reason.

 

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[1] See ‘What Appropriation Means to Me and Mine’ and ‘On Copyright Parts One, Two, and Three.’

[2] It plays ‘Hot Shots’ to Smith’s ‘Top Gun.’ (David, not Tony.)

[3] When one yells that the emperor has no clothes on, once he goes and gets dressed it’s on to the next issue. However as far as the inequality of gender in the art world goes, it’s probably safe to say that the whole business is not likely to be putting a robe on any time soon.

[4] Which should probably not be a surprise when gene sequences (i.e. life) can be owned as intellectual property.

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.

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[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.