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A Search for Comity in the Intellectual Property Wars: symposium at The New York Institute for the Humanities at NYU, April 28-30, 2006 [slides, audio, transcripts]
download the report [PDF]
Charles Jervas portrait of Jonathan Swift (1718) via.
via The Telegraph:
Adrian Hon is the Founder and Chief Creative at Six to Start, an online games company; he originally trained as a neuroscientist at Cambridge and Oxford. He takes a strong interest in the controversies surrounding intellectual copyright. Follow Adrian on Twitter at @adrianhon
On Tuesday 14th, the Serious Organised Crime Agency (SOCA) posted a message on RnBXclusive.com, stating: "If you have downloaded music using this website you may have committed a criminal offence which carries a maximum penalty of up to 10 years imprisonment and an unlimited fine under UK law."
SOCA's threat is a stirring defence of what we hold dear in this country – the right of a creator to benefit from their intellectual property, whether it be a song, book, film, or game. Without this assurance of compensation, we might not see any new creative works being produced at all, and so it's for this reason that we've continually lengthened copyright terms from 14-28 years as set out by the Statue of Anne in 1710 to "lifetime plus 70 years" today.
Yet now, as we've instituted decade-long jail terms and unlimited fines for copyright infringers, it's time to take the next step in extending copyright terms even further.
Imagine you're a new parent at 30 years old and you've just published a bestselling new novel. Under the current system, if you lived to 70 years old and your descendants all had children at the age of 30, the copyright in your book – and thus the proceeds – would provide for your children, grandchildren, great-grandchildren, and great-great-grandchildren.
But what, I ask, about your great-great-great-grandchildren? What do they get? How can our laws be so heartless as to deny them the benefit of your hard work in the name of some do-gooding concept as the "public good", simply because they were born a mere century and a half after the book was written? After all, when you wrote your book, it sprung from your mind fully-formed, without requiring any inspiration from other creative works – you owe nothing at all to the public. And what would the public do with your book, even if they had it? Most likely, they'd just make it worse.
No, it's clear that our current copyright law is inadequate and unfair. We must move to Eternal Copyright – a system where copyright never expires, and a world in which we no longer snatch food out of the mouths of our creators' descendants. With eternal copyright, the knowledge that our great-great-great-grandchildren and beyond will benefit financially from our efforts will no doubt spur us on to achieve greater creative heights than ever seen before.
However, to make it entirely fair, Eternal Copyright should be retroactively applied so that current generations may benefit from their ancestors' works rather than allowing strangers to rip your inheritance off. Indeed, by what right do Disney and the BBC get to adapt Alice in Wonderland, Sleeping Beauty, and Sherlock without paying the descendants of Lewis Carroll, the Brothers Grimm, and Arthur Conan Doyle?
Of course, there will be some odd effects. For example, the entire Jewish race will do rather well from their eternal copyright in much of the Bible, and Shakespeare's next of kin will receive quite the windfall from the royalties in the thousands of performances and adaptations of his plays – money well earned, I think we can all agree.
Naturally, we'll need a government-controlled bureaucracy to track the use of copyrighted material from all of history and to properly apportion royalties to the billions of beneficiaries in a timely manner. There are some downsides; for example, we can expect countless legal cases to spring up concerning the descent of various famous creators, which will unfortunately gum up our courts for the indefinite future, but it's a price worth paying in order to put things right.
A bold idea such as Eternal Copyright will inevitably have opponents who wish to stand in the way of progress. Some will claim that because intellectual works are non-rivalrous, unlike tangible goods, meaning that they can be copied without removing the original, we shouldn't treat copyright as theft at all. They might even quote George Bernard Shaw, who said, "If you have an apple and I have an apple and we exchange these apples then you and I will still each have one apple. But if you have an idea and I have an idea and we exchange these ideas, then each of us will have two ideas."
Such opponents are condoning criminal activity, plain and simple, and are frankly no better than criminals themselves. Why would anyone want to create new ideas and intellectual works if they can't benefit from them in perpetuity? Are we to believe that people have motivations other than the purely financial and quantifiable? And are they suggesting we should continue to allow modern "creators" to sully the legacy of legends like Jane Austen and Hans Christian Andersen with their pointless, worthless adaptations, remixes, and reinterpretations of Pride and Prejudice and The Emperor's New Clothes?
In the interests of full disclosure, I do want to point out a genuine problem with Eternal Copyright, in that it will be difficult to enforce due to the inherently criminal nature of digital technology, which allows information to be copied perfectly and instantly. Absent a complete ban of the technology, which admittedly would be a little draconian, one obvious solution would be to hard-wire digital devices to automatically detect, report, and prevent duplication of copyrighted material. Yes, this might get the libertarians and free-speech crazies out protesting, but a bit of fresh air wouldn't do them any harm.
Certainly we wouldn't want to listen to their other suggestions, which would see us broaden the definition of "fair use" and, horrifically, reduce copyright terms back to merely a lifetime or even less. Not only would such an act deprive our great-great-grandchildren of their birthright, but it would surely choke off creativity to the dark ages of the 18th and 19th centuries, a desperately lean time for art in which we had to make do with mere scribblers such as Wordsworth, Swift, Richardson, Defoe, Austen, Bronte, Hardy, Dickens, and Keats.
Do we really want to return to that world? I don't think so.
Having trouble viewing this? Click here to view on SVA's site.
UPDATE 3/20/12: Watch the full panel online in iTunesU : "Joy Garnett Panel":
UPDATE 3/20/12: Watch the full panel online in iTunesU : "Joy Garnett Panel":
WATCH an excerpt of Rob Storr's talk on vimeo.
FOR IMMEDIATE RELEASE
with: Virginia Rutledge, Robert Storr, and Oliver Wasow
Thursday, February 16, 2012
School of Visual Arts Theatre
333 West 23rd Street
Appropriation art made its name during the nineteen eighties in New York. Drawing on earlier traditions of collage and montage up through Pop Art, appropriation artists subverted, re-photographed, and re-purposed topical material, paving the way for contemporary approaches to art-making now further enabled by digital technology.
However, fueled by the ongoing backlash against digital culture, common forms of visual quotation, appropriation in particular, have come increasingly under attack. Copyright infringement lawsuits, many of them meritless, have been on the rise, including those brought by artists against fellow artists. The freedom to tinker, comment, reference or borrow -- the way art progresses over time -- is continually being challenged.
As issues of appropriation enter the broader public and legal debate, artists, historians, curators and those who are part of the visual arts community need to explain why appropriation and other forms of visual referencing are important elements in the making of meaningful art. We need to be able to defend these practices in clear language, in and beyond the courtroom. We need to make the case for appropriation.
Three panelists -- art historian and attorney Virginia Rutledge, critic and curator Robert Storr, and artist Oliver Wasow -- will join artist and NEWSgrist blogger Joy Garnett in a dialogue about the creative methods and ideas associated with appropriation art today.
Virginia Rutledge is an art historian and attorney. Previously an exhibition associate at the Los Angeles County Museum of Art, a litigator at Cravath, Swaine & Moore LLP, and the Vice President and General Counsel of the nonprofit Creative Commons, she is now in private practice focusing on art, intellectual property, and related transactions and ventures, both commercial and nonprofit. Virginia has chaired the Art Law Committee of the New York City Bar Association and was the curator of the 2011 Texas Biennial, a collaborative project involving over 60 contemporary visual arts organizations across the state.
Robert Storr is an artist, critic, curator and in 2006 was appointed Professor of Painting and Dean of the School of Art at Yale University. He was curator in the Department of Painting and Sculpture at the Museum of Modern Art, New York, from 1990 to 2002. In 2002 Mr. Storr was named the first Rosalie Solow Professor of Modern Art at the Institute of Fine Arts, New York University. Mr. Storr has also taught at CUNY, the Bard Center for Curatorial Studies, Rhode Island School of Design, Tyler School of Art, New York Studio School, and Harvard University. He lectures frequently in this country and abroad. He has been a contributing editor at Art in America since 1981 and writes frequently for Artforum, Parkett, Art Press (Paris), and Frieze (London). He has also written numerous catalogs, articles, and books. Among his many honors he has received a Penny McCall Foundation Grant for painting, a Norton Family Foundation Curator Grant, and honorary doctorates from the School of the Art Institute of Chicago, the Maine College of Art and Lyme Academy. His awards include the American Chapter of the International Association of Art Critics, a special AICA award for Distinguished Contribution to the Field of Art Criticism, an ICI Agnes Gund Curatorial Award, and the Lawrence A. Fleischman Award for Scholarly Excellence in the Field of American Art History from the Smithsonian Institution’s Archives of American Art. In 2000 the French Ministry of Culture presented him with the medal of Chevalier des Arts et des Lettres. He is currently Consulting Curator of Modern and Contemporary Art at the Philadelphia Museum of Art, and in 2007 was chosen commissioner of the 2007 Venice Biennale, the first American invited to assume that position.
Oliver Wasow is an artist working with photography and other related media. He has had numerous one-person exhibitions, and his work has been written up and reviewed widely. He has participated in a number of major museum shows, such as “Image World” at the Whitney Museum of Art, and “Utopia/Post Utopia” at Boston’s Institute of Contemporary Art. His work will be included in the forthcoming exhibition at the Metropolitan Museum of Art, “Faking It: Manipulated Photography Before Photoshop,” to open in October 2012. He is the recipient of two grants from the New York State Council on the Arts, and a Louis Comfort Tiffany Foundation Award. In addition to his career as an artist, Mr. Wasow has also been involved in the art world in a curatorial capacity. From 1983 to 1987 he was the owner and director of The Cash/Newhouse Gallery in New York’s East Village, and he has organized a number of independent exhibitions, including “Moscow, Vienna, New York” at Vienna’s Kunsthalle, and most recently, “Artist Unknown,” an exhibition of thousands of vernacular images culled from the Internet at the Center for Art and Culture in Hollywood, Florida, (October 29, 2011 – January 29, 2012).
Joy Garnett is a painter, writer and blogger in Brooklyn, NY. Her work has been associated with appropriation art since the controversy surrounding her 2003 painting “Molotov,” which reinvigorated the discussion regarding issues of authorship and fair use in the visual arts. She has delivered numerous lectures on this subject at colleges and universities, including Columbia University, The New York Institute of Humanities at NYU, Taubman College of Architecture & Urban Planning in Detroit, the European College of Liberal Arts Berlin, and Roger Williams University School of Architecture, Art & Historic Preservation, Bristol, Rhode Island. Her recent writings include "Analogue Natives" appearing in the 25th anniversary issue of M/E/A/N/I/N/G, edited by Mira Schor and Susan Bee (2012), and "On the American Apocalyptic Sublime," in Virilio Now: Current Perspectives in Virilio Studies, edited by John Armitage (Polity, 2011). For over a decade, Garnett has edited NEWSgrist, http://newsgrist.typepad.com, a blog that focuses on the politics of art and culture in the digital age. She is a recipient of grants from Anonymous Was a Woman, the Wellcome Trust, and the Lower Manhattan Cultural Council. She has been a columnist and contributor to Artnet magazine, and has served since 2005 as the Arts Editor of the contemporary media journal Cultural Politics, published by Duke University Press. Ms. Garnett is represented by Winkleman Gallery, New York.
Richard Prince: Specially Round Midnight, 2008, from the Canal Zone series.
Below are excerpts from two articles about the much-anticipated Richard Prince appeal, one by Julia Halperin of ArtInfo, the other by Peter Friedman, Ohio IP lawyer and author of the blog Ruling Imagination: Law and Creativity, posted on the same day.
(Artnet's Rachel Corbett, who has been unflagging in her coverage of the case, got the jump on them by one day: Cariou v. Prince: CARIOU FIGHTS COPYRIGHT APPEAL, Artnet, Jan 25, 2012).
Halperin's thorough round-up additionally points us to some irresistible "gossipy tidbits", while Friedman includes copies of the latest brief from the Appeal (1/25/2012) as well as the amicus brief filed in support of Prince by the Warhol Foundation in November 2011.
Read both in full; here are excerpts:
New Twist in Richard Prince Copyright Case Asks Whether Art Law Is in the Eye of the Beholder
By by Julia Halperin
Published: January 26, 2012
The three-year legal battle between Richard Prince and Patrick Cariou isn't over yet. Cariou's lawyers voiced their opposition to Prince's appeal of the historic 2011 copyright decision in a brief filed yesterday in the United States Court of Appeals for the Second Circuit. The takeaway? It's not easy to mix copyright law and art history.
Perhaps the most interesting question highlighted in the filing is this: should the art establishment's critical reading of an artist's work sway a judge's ruling? According to Dan Brooks, a partner at Schnader Harrison Segal & Lewis and counsel for Cariou, the answer is no. "Fair use is an affirmative defense, so it's something that the defendant has to prove. It's true that some of the cases evaluate whether the comment or satire is objectively perceivable," Brooks told BLOUIN ARTINFO. "But courts only do that after the defendant first says he subjectively intended to create a parody or satire."
So, does it matter if outside observers perceive a work as parody or commentary if the artist never frames it as such? The Andy Warhol Foundation challenges Brooks's assertion in an amicus brief filed in support of Prince, claiming that "transformative meaning must be assessed first and foremost by observation of the work itself." This argument is likely to be fleshed out by Prince's own lawyers in their response. The legal battle is in no way over: after Prince's lawyers file their brief, Cariou's lawyers will have the opportunity to reply.
via Ruling Imagination: Law and Creativity:
By Peter Friedman
January 26th, 2012
Patrick Cariou’s lawyers have filed their brief (embedded below) in opposition to Richard Prince’s appeal of the decision holding that Prince’s appropriation’s of Cariou’s photographs constituted copyright infringement. Writing in artnet, Rachel Corbett explains, among other things, that Cariou’s legal team
is banking largely on the claim that Prince’s work failed to comment on or satirize Cariou’s photographs — a common objection against applying the fair use exception to copyright law.
While Prince’s lawyers, Boies, Schiller and Flexner, convincingly argue that “Canal Zone” is “transformative” of the original works, Cariou’s lawyers say that’s not enough.
As I wrote nearly a year ago, I believe it would be absurd to conclude whether Prince’s use of Cariou’s work was transformative based on Prince’s words. Artist’s are not particularly gifted at putting into words what their works mean. Why, after all, would we need their work if their words would suffice?
The passageway provided by art is very wide. No single interpretation of art is ever “right,” not even the artist’s own. He or she can tell us the intent of the work, but the actual meaning and significance of the art, what the artist achieved, is a very different matter. (It is pitiable to hear the grandiose discussions of artists’ work by the least talented of our contemporaries.) We should listen to the appreciations of others, but then we should put them aside and advance toward a work of art in the loneliness of our own truth. Each of us encounters the work alone, and how much we receive from it is wholly the effect of our will to accept this responsibility.
What was Jackson Pollock’s purpose in painting Lavender Mist? Van Gogh’s in painting The Irises? Haven’t we accepted by now the limitations focus on artistic intention would impose on our appreciation of art? Nevertheless, in the decision enjoining the publication of a “sequel” to The Catcher in the Rye, the judge was significantly influenced by the fact the author and his representatives had described the work in words that didn’t fit the legal standard they wanted to meet:
Until the present lawsuit was filed, Defendants made no indication that 60 Years[the new work] was in any way a parody or critique of Catcher [in the Rye]. Quite to the contrary, the original jacket of 60 Years states that it is “. . . a marvelous sequel t one of our most beloved classics.” . . . Additionally, when initially confronted with the similarities between the two works, rather than explaining that60 Years was a parody or critique of Catcher, Colting’s [the new work’s author] literary agent, Mr. Sane, contended that 60 Years “is a completely freestanding novel that has nothing to do with the original Catcher in the Rye.” Opinion and Order at 16, n. 3.
Colting and his agent, obviously, should have called his work a parody and critique, not a sequel or a “freestanding novel.” Plainly, they had not been sufficiently counseled by lawyers who could have put the proper words in their mouths. It’s odd to think that being sufficiently versed in the mere words that would be consistent with the legal outcome you seek should make a difference, though. No matter what an artist said, his work would be the same. [NEWSgrist Editor's note: it IS odd that the ruling in favor of Salinger that barred - banned - publication and distribution of Colting's book in the US was delivered by none other than Judge Batts, the same Judge who ruled in favor of Cariou, and awarded the destruction of Prince's infringing works as part of damages.]
In the same way, it seems odd that Prince’s refusal to articulate an artistic intent should be a determinant of the legitimacy of his artwork. The Amicus Brief filed in support of Prince’s appeal by the Andy Warhol Foundation for the Visual Arts (also embedded below) makes precisely these points (at 31-34; hyperlinks added):
Ultimately, the meaning of art is defined by the viewer, not a judge, or even the artist himself. A viewer’s reaction to a work of art is shaped by the viewer’s personality, emotions, values, experience and knowledge. So while it is plainly dangerous for those trained in the law to judge the worth or meaning of art, see Campbell, 510 U.S. at 582-83, it is equally dangerous to pretend the meaning of art can be defined solely by the intention of the artist herself, much less her ability to articulate that intention to the satisfaction of judges and lawyers. See Pleasant Grove City v. Summum, 555 U.S. 460, 476 (2009) (recognizing “it frequently is not possible to identify a single ‘message’ that is conveyed” by a government monument, and the sentiments it expresses “may be quite different from those of . . . its creator”); Hurley v. Irish-Am. Gay Lesbian & Bisexual Group of Boston, 515 U.S. 557, 569 (1995) (“a narrow, succinctly articulable message is not a condition of constitutional protection” for expressive speech).
That is not to say the testimony of the artist is irrelevant. If, as in Blanch [v. Koons], the artist can explain the intended meaning of his work and how it differs from the work he borrowed, that testimony may be quite informative. But the failure to provide an explanation as polished as the one Jeff Koons provided in Blanch cannot be fatal. If it were, then every artist who works within this tradition will be forced to concoct a narrative that appeals to legal sensibilities, and the law will succeed in protecting only those artists who are scripted by counsel. [...]