NEWSgrist - where spin is art

NYU Comedies of Fair U$e (2006): Molotov talk now up on YouTube

My ancient googlevideo account just prompted me to transfer an old video to YouTube. I couldn't imagine what it was. It turned out to be my voice-over + slide show from the 2006 conference at NYU "Comedies of Fair U$e", organized by Larry Lessig and Lawrence Weschler for the New York Institute for the Humanities (that's LW's voice at the beginning of the clip introducing me and the subject of the panel). It was a great conference: all the panels were organized by cultural category (publishing, fiction writing, documentary film, visual art, music sampling, etc). The visual art panel included me and my then nemesis, Susan Meiselas, Art Spiegelman, Lebbeus Woods and Judge Alex Kozinsky. Here's my spiel, in a tightly wound 13-1/2 minutes (as opposed to my 45min Columbia Univ. talk given in 2004 on the same subject -- by 2006 I was much clearer on the issues):

WATCH THE VIDEO:

https://www.youtube.com/watch?v=xiO784BvVDE

Makers Weigh-in on Sarah Morris and Origami Crease-Pattern Flap

 

This post on the blog MAKE is highly unusual for the number of smart, insightful comments, which I include below.

via MAKE (thanks to Rob Myers):

“Lawsuit Between Origami Enthusiasts Unfolds” – What Do You Think Makers?

Posted by Phillip Torrone | Monday June 18th, 2012 3:00 PM

Lawsuit between origami enthusiasts unfolds – The Madeleine Brand Show:

Origami is the Japanese art of folding paper. You start with one square sheet. You crease it, fold it and pretty soon you’ve created a bird or maybe a frog.
Expert origami artists can take that same sheet and make elaborate flowers or lifelike insects.

There’s a lawsuit pending though, that could shake up the craft of origami, and the art world in general. Reporter Sanden Totten takes us inside a dispute between and origami maker and a painter.

Origami artist Robert Lang is suing abstract painter Sarah Morris, claiming that she used his designs in her paintings without asking permission.

We’ve featured Robert Lang’s origami here at MAKE (and CRAFT) so – please review the entire article (and listen the show, MP3) and post up what you think about this. Is it fair use for the artist, Sarah Morris, to make artwork from Robert’s computer generated folding-designs, or is it a copyright violation? Her paintings are the crease pattens, blown up, colored, and they’re paintings – not folded up. Robert does not appear to be credited in her works according to the article. Armchair lawyers, weigh in!

15 Responses to “Lawsuit Between Origami Enthusiasts Unfolds” – What Do You Think Makers?

1. Steve Hoefer (@Grathio) on June 18th, 2012 at 3:36 pm said:

   Credit is a weird and complex thing. I once received a legal threat to _remove_ credit that I had given someone who inspired me. (No, I don’t understand either.) I’ve run across projects very obviously inspired by things that I’ve done and not been given credit. And that sucks, it’s like a punch in the gut. There’s this person out there whom I inspired to do something great (good!) who is claiming all the credit for themselves. (bad!) Every time I see it happen I get wound up, throw a tiny little angry party in my head. Could I sue? Sure! Would I win? Possibly, sometimes.

   But I don’t sue. I rarely even send a nasty (or passive agressive) letter. Because what do I really want? Do I want to get paid? Sure, who doesn’t, but any settlement is going to be small and I’ll have to deduct the legal fees. That’s if I win the suit. If I loose, it’s all out of pocket. There are better ways to get paid.

   Do I want to get recognition? Of course! But do I want to be recognized as someone who creates and encourages inspiration, or recognized as someone who sues those who are inspired by my work? I most definitely don’t want to be known as the latter. If the choice is between no recognition and being an inspirational wet blanket, I’ll take obscurity.

   So I don’t sue (or haven’t yet). It’s not the solution to my problem, ans sometimes there is no good, correct solution to a problem. I figure it all comes out in the karmic wash. A person simply can’t build a good reputation on ripping off the work of others.

   Reply ↓
2. chuck on June 18th, 2012 at 4:01 pm said:

   The internet has made intellectual property as we know it an obsolete thing. I see too many novel things in a day to catalog what inspired what and why. As far as direct inspiration or the modification of someone else’s idea goes, credit is what matters and we should all give it where it is due. If your interest in your ideas is purely financial then don’t share them. Ideas are viral and you can’t claim ownership of a shared idea any more than you can sneeze in my face and demand I don’t catch your cold.

   Reply ↓
3. Stryder on June 18th, 2012 at 4:17 pm said:

   It would be one thing is she was “inspired” by the stuff and rendered a painting from my mind’s eye. It might even be ok if she looked at the pic and free handed her own interpretation. But if she did multiple 99%-to-scale cut n pastes and presented it as abstract art, giving due credit would have been calling herself out for fraud.

   Reply ↓
4. Janebot on June 18th, 2012 at 4:19 pm said:

   Robert Lang makes his living off those patterns. They are made with his own software, (he is an engineer) which he writes and designs, and he uses the software to create unique paper patterns. He sells books, teaches classes, displays his folds in museums, and sells special order (life size paper origami quartet for an orchestra performance)origami. Those are his livelihood, and when she takes them, laters them, makes money off them, and does not credit him, she is acting dishonorably at the least, illegally at the worst. Those patterns are the work of a master folder, with decades of experience and teaching, and most of his designs are only foldable by masters, since the computer allows him to design folds that stretch the limits of what the paper can do in terms of thickness and strength. I am a hobbyist and my mother is a master folder of 30 years experience, and his incredible designs are beyond our ability to replicate. I have met him and seen his folds on display at a museum in California, and they’re astonishing. His folding patterns are his property and the result of his hard work, and she should credit and purchase them accordingly.

   Reply ↓

   • Dominic Muren (@dmuren) on June 19th, 2012 at 12:15 am said:

     Legal technicalities aside (because copyright has been around long enough, and ben revised enough, that it cannot accurately represent the interests of the majority of people):

     “Robert Lang makes his living off those patterns. They are made with his own software, (he is an engineer) which he writes and designs, and he uses the software to create unique paper patterns. He sells books, teaches classes, displays his folds in museums, and sells special order (life size paper origami quartet for an orchestra performance)origami. Those are his livelihood, and when she takes them, laters them, makes money off them, and does not credit him, she is acting dishonorably at the least, illegally at the worst.”

     Robert Lang does not make print-based modern art. There is no reasonable way that this piece of artwork diverts revenue from him. In fact, if it gave credit (which would be polite, but is not required by copyright law) it might even expose more people to his work (since he can’t exhibit in all museums at once).

     Let me be clear: I’m not saying she’s not breaking copyright law. I’m just frustrated that copyright law, as it stands today, causes artists to get sued unnecessarily, and encourages Robert Lang, one of my favorite thinkers, to act like a troll.

     Reply ↓
5. Janebot on June 18th, 2012 at 4:22 pm said:

   *alters derp!
   I appreciate that we all stand on the shoulders of giants- there is a great deal of origami that is hundreds of years old, unattributable, or public domain that she could have used, or she could have put on her artist hat- and made her own designs, like Robert Lang did to begin with.

   Reply ↓
6. johngineer on June 18th, 2012 at 4:48 pm said:

   She probably looked at the original patterns and said to herself: “those are fascinating” and wanted to find a way to showcase what she found so interesting about them, so she made paintings of them. It’s really not uncommon to get hung-up on some small piece of a larger work, and want to celebrate it and create from that starting point. Mimicry is a valid (if presently overused) creative avenue.

   In another time, she might have called her work “Origami (after Robert Lang)”.

   But we live in the early 21st century, where inspiration without written permission (and royalties) is verboten. So rather than ask for permission, get the wrong answer, and end up on someone’s radar, she went ahead and did it on the QT and then got caught. The penalty for either is about the same.

   Reply ↓
7. Wicker on June 18th, 2012 at 5:25 pm said:

   I think it’s a pretty far stretch to attempt to sue an artist in a different medium, using small sections of software generated patterns which she layered and otherwise altered to produce her finished product. A product which in no way appears to mimic the work of the person suing her. He works in paper to create a three-d object, hers is two-d. If no one had told me she was inspired by his work, I would have easily believed she simply drew the shapes herself. I think Lang should probably save himself some stress and let it go.

   Should she credit him, absolutely if he desires it. Why not? She said herself his work inspired her.

   In terms of a court case, he has as much chance to win as lose I would say. Depends on the judge more than anything else and whether he can produce hard evidence of “copying”. It would need to be virtually traced from the original to have a prayer. I hope they settle out of court and save the world one more rather silly litigation.

   Reply ↓
8. Brent Marshall on June 18th, 2012 at 5:44 pm said:

   A couple of years ago I had an extended conversation with CARFAC (http://www.carfac.ca/) regarding this exact topic. After getting several levels of people experienced in copyright law, the result was murky at best. As an Origami folder I use crease patterns (CPs) to learn from, and sometimes reproduce for a commissioned rate, but at all times you provide the original credit for the design.

   In a conversation a few years ago with the late Origami artist Eric Joisel (http://www.ericjoisel.com/) I was asked to change the credit from a photo of my fold / his design because it was not folded the way he folds. He also provided a photo of his finished product, which was simply astounding. It was a fascinating lesson in proper accreditation.

   Reply ↓
9. Ed on June 18th, 2012 at 5:52 pm said:

   What does his software license say?

   Reply ↓
10. Matthew Krawczun on June 18th, 2012 at 7:39 pm said:

    there’s an old saying.

    “a good artist borrows a great artist steals”

    if you had to get or give credit for everything piece of art made there would be no art in the world. I understand this man makes a living off his art but this isn’t going to change that. this is about greed, feeding an outdated belief that we own ideas

    Reply ↓
11. Sean Ragan on June 18th, 2012 at 10:00 pm said:

    Here’s a key bit of language from Blanch v. Koons, a recent (2005) and important US federal case about artistic “appropriation,” as it is known:

    “The painting’s use does not ‘supersede’ or duplicate the objective of the original, but uses it as raw material in a novel way to create new information, new aesthetics and new insights. Such use, whether successful or not artistically, is transformative.”

    If it is “transformative,” per earlier case law, then it is fair use. The qualifier that the artistic success of the use is irrelevant suggests that whether new information/aesthetics/insights are actually created, or not, is less important than the intention to create them, which Morris clearly has. The other part of Judge Stanton’s test–that the use not supersede or duplicate the objective of the original–also weighs strongly in Morris’ favor, because the objective of Lang’s originals is, clearly, to provide a pattern for producing folded paper works. Morris’s objectives–to provide patterns to be appreciated abstractly, as paintings, solely for their beauty as patterns–neither supersedes nor duplicates that objective.

    Reply ↓
12. Karl Royle on June 19th, 2012 at 12:42 am said:

    It may have been a nice idea to credit the original inspiration but it isn’t required legally not should it be. The paintings are not only a completely different medium but also not even a copy of his work. All she did (as far as I understand it) was to use small pieces of his work and create a new and original pattern then color it. The copyright only applies to the entire image not pieces of it and coloring it even if it was whole, changes the “use” of the original.
    One last thought; if I built a four foot high Cambell’s soup can would Andy Warhol or his estate deserve the royalties? Of course not.

    Reply ↓
13. Niall de Buitlear (@nialldebuitlear) on June 19th, 2012 at 2:34 am said:

    Don’t understand why this is going to court, really. Surely if both parties are reasonable they would agree an appropriate license fee and forget about it. I suspect the origami folder is being unreasonable and is angry about what he perceives to be plagiarism though I don’t accept that it is.

    Sarah Morris’s paintings do sell for a lot of money and no doubt this is also a factor in why he would be so annoyed. However I think that shows a complete failure to understand the art market and how it creates “value” as well as a failure to understand the tradition of abstract painting and conceptual art which Sarah Morris is involved with.

    Reply ↓
14. Shannon Hoover (@shahoo) on June 19th, 2012 at 4:11 am said:

    Robert should be flattered, art is highly derivative and can’t be patented or trademarked.

    Reply ↓

Say "Cheesehead" | Michael Rips Speaks

Courtesy of the artist and Mary Boone Gallery, Licensed by VAGA, New York

David Salle's "Cheesehead," another painting in which the author makes an appearance.

 

via NYTimes:

Opinion

Fair Use, Art, Swiss Cheese and Me

By MICHAEL RIPS - Published: June 16, 2012

NONE of the thoughts that occurred to me on that tranquil afternoon when a slice of Swiss cheese was deposited on my face were so exotic as to include the notion that, 15 years later, I would listen to judges debate whether I should be allowed to remove the cheese and set it on fire.

And yet, such exotic questions are now before the United States Court of Appeals for the Second Circuit, where a three-judge panel will rule on a case with serious implications for the visual arts.

In the fall of 2008, the Gagosian Gallery in New York exhibited a series of works by Richard Prince. Those works incorporated photographs that Mr. Prince had found in a book by the French photographer Patrick Cariou. The photographs were of Rastafarians living in the mountains of Jamaica. Mr. Prince borrowed one such photograph — a Rastafarian against a dense growth of plants — covered the man’s eyes with blue circles and placed an electric guitar in his arms.

Mr. Cariou sued Mr. Prince for copyright infringement.

For me, the case recalled that afternoon, when I stood before a painting in the studio of David Salle, one of the most influential artists of our time. Mr. Salle had based the painting on a photograph of me in a black suit and tie, dignified, staring into a mirror. He was in the process of making “finishing touches.” I had already informed my father-in-law, whose suit I was wearing (a suit, he told me, that had brushed against the sleeve of Robert Kennedy on a hotel stairway in Cleveland), of the imminence of the portrait.

As I was about to compliment Mr. Salle on the likeness of the portrait to the photograph, he pasted the perforated wedge on my face. And that is how a photograph of me, as incorporated into one of Mr. Salle’s paintings, was exhibited at the Lehmann Maupin Gallery, and that is how it remains to this day — “Rips in the Mirror.”

From this, you no doubt understand my sympathy for Mr. Cariou or, at least, the Rastafarian.

Mr. Prince was not as sympathetic. He fought the lawsuit, claiming that he had sufficiently altered Mr. Cariou’s photographs to bring the works exhibited at Gagosian Gallery within the fair use doctrine, which allows artists to borrow from other works so long as they give a new expression or meaning to the original work. But the trial court rejected Mr. Prince’s argument, thereby exposing him to liability for the millions of dollars he had earned from the exhibition and giving Mr. Cariou the right to destroy the unsold paintings.

And the court did not stop with Mr. Prince. Because Mr. Prince was known to use images from other sources, the gallery and its owner were held liable for failing to investigate Mr. Prince’s paintings for copyright violations.

This caused museums across the country to file a brief with the court of appeals. They argued that they would be forced to hire lawyers to investigate their collections for works containing borrowed images, and given the ubiquity of such images in 20th-century art, the cost to the museums would be unsustainable. The more likely, though no less troubling, alternative is for museums to censor what they exhibit.

Should the law require this?

The answer revealed itself to me when, a couple of years ago, “Rips in the Mirror” — one of several paintings Mr. Salle did of me, a couple with cheese — came up for auction. Deciding to end my public association with an item more typically paired with a plate of crackers, I resolved to purchase the painting and retire it. When I explained to the young woman at the auction house what I was prepared to pay for the painting, she chuckled and then, politely, replied, “I am sorry, sir, but recent sales for his group have been quite strong.”

“His group” was what art critics and collectors now refer to as the “Pictures Generation” — a movement of artists who, skeptical of the artistic as well as commercial images that surrounded them, appropriated those images into their own work and then subverted them. It was a strategy that drew upon the early works of James Rosenquist.

The strength of interest in the Pictures Generation has caused the prices of their works to reach sums in the millions — stunning sums, the very sums that thwarted my attempt to remove the cheese portrait from circulation.

Richard Prince is a Pictures Generation artist.

Patrick Cariou is not. He is an ethnographic photographer, and it is the sort of photographs he takes that have been some of the subjects of appropriation and subversion by the Pictures Generation. For this reason, the markets for Mr. Prince and Mr. Cariou are not just distinct; they are conflicting. In other words, no one heading out to purchase an ethnographic photograph by Mr. Cariou (or anyone else) was going to be diverted by the Prince show at Gagosian.

And that should be the answer to the legal question. Since Mr. Prince caused no economic injury to Mr. Cariou, despite his claims to the contrary, Mr. Prince should not be required to turn over his profits (or works).

So, too, with the Salle painting. It is David Salle and the artistic movement with which he is associated, and to which he has greatly contributed, that give value to his paintings — and not, sadly, my image. For those who believe otherwise, I have boxes of old photographs I would be happy to sell.

 

Michael Rips is a lawyer and the author of “Pasquale’s Nose: Idle Days in an Italian Town.”

A version of this op-ed appeared in print on June 17, 2012, on page SR5 of the New York edition with the headline: Fair Use, Art, Swiss Cheese And Me.

 

Prince v. Cariou Appeal: Oral Arguments Heard, Injunction Deemed Draconian

 

Via Art in America: [Emphasis is NEWSgrist's]

Injunction in Prince V. Cariou Compared to Taliban in Appeal

by Brian Boucher 05/21/12

Three judges heard oral arguments in the appeal regarding the significant copyright case Prince v. Cariou this morning. The lawyers for Prince seemed to have the judges' collective ear, which could bode well for the appropriation artist.

The case concerns the "Canal Zone" series of paintings by artist Richard Prince (2008), which incorporated photographs by Patrick Cariou from his 2000 book Yes, Rasta (Powerhouse) for a show at Gagosian Gallery. In 2009 Cariou brought a copyright infringement suit against Prince, Gagosian Gallery, Lawrence Gagosian and catalogue publisher Rizzoli. In March 2011, U.S. District judge Deborah Batts ruled against Prince and ordered the defendants to destroy remaining copies of the catalogue and unsold paintings that make use of Cariou's photographs. The case has given rise to extensive debate in the art world over copyright law and provisions for "fair use" of appropriated original material.

Prince's lawyers argued this morning that Batts's decision was based on a fundamental error in finding that an artist cannot make a transformative work using appropriated materials without "commenting" on the original. The works' value and originality, they posited, was proved by the sky-high market for the works.

Counsel for Cariou argued that there was no reason Cariou's work in particular had to be taken without permission when other, similar images existed.

The liveliest moment in this morning's proceedings came when the panel asked Daniel J. Brooks, counsel for Cariou, whether the injunction to destroy the works was in the public interest.

"It seems like something that would appeal to the Huns or the Taliban," Judge Jackson observed.

Brooks pointed out that his client's father was in the French Resistance and that he does not support destruction of any artwork, which is for him redolent of Nazi bookburning.

"The court," Josh Schiller of Boies, Schiller & Flexner, Prince's counsel, later observed, "did not invent the injunction."

The case also deals with whether Cariou's market was harmed by Prince's paintings. The judges seemed unsympathetic to Brooks's claims of a damaged market.

"Bringing up the market is a clear loser for you," Judge Parker said to Brooks, who confirmed that Cariou's prints sold for a few thousand Euro, while Prince's paintings sold for millions. "You sold to a totally different audience, you've admitted that not many of the books were sold, you sold them out of a warehouse in Dumbo, and that the book was out of print. Prince was selling to a wealthier crowd, and on this side of the river." The allusion to a more elevated marketplace in Manhattan brought laughs from the courtroom.

Another key element was testimony that art dealer Christiane Celle had balked at a previously discussed gallery exhibition of Cariou's work because of Prince's "Canal Zone" show. Schiller argued that the testimony of one dealer about a single show does not prove the foreclosure of a market, further pointing out that Cariou is still not listed as an artist on Celle's website.

"I think the key moment today was when Judge Parker said that the injunction to destroy the works was something akin to a decision by the Huns or the Taliban," Amy Adler, a professor of art law at NYU, told A.i.A. (Adler has consulted with Boies, Schiller & Flexner but was speaking on her own behalf.) "The judges could see that the injunction is draconian. And they plainly understood the importance and the artistic significance of this case."

Donn Zaretsky of the Art Law Blog pointed out the high level of interest on the part of the judges. "In the previous cases this morning, it was very businesslike, they kept everyone to their time limits. Here you could see the judges were really interested. They let everyone go over time."

Virginia Rutledge, counsel for The Andy Warhol Foundation for the Visual Arts (which filed a friend of the court brief in the case), told A.i.A., "The outcome can't be predicted based on questions raised during oral argument, but the Court has before it very compelling arguments for Prince's transformative use of Cariou's imagery and the significance of the First Amendment speech interests at stake, and was openly dismissive of allegations of market harm."

The court now deliberates and decides the case at its own schedule. Observers of the court tell A.i.A. that could take as much as six months to a year.

###

BONUS: Some Canal Zone related images you may not have seen that show their variety and scale (via Art Oberved):

Images via

Reclaiming Fair Use

 

Nice and timely, as usual, from Techdirt.

Via Techdirt: Here is Part II of our excerpt from Chapter 1 of Reframing Fair Use by Patricia Aufderheide and Peter Jaszi, which is our May selection for the Techdirt Book Club. You can read Part I here. We'll have another excerpt soon, and will be scheduling the author chat in the near future.

How Does Fair Use Fit Into The Critique Of Copyright?

from the reclaiming-fair-use dept

by Patricia Aufderheide and Peter Jaszi
Fri, May 18th 2012 6:29pm

Fair use was in eclipse for decades, with judges, lawyers, legal scholars, and creators unsure of its interpretation and convinced of its unreliability. Since the late 1990s, fair use has returned to the scene, and has become a sturdy tool for a wide range of creators and users. This transformation has been remarkable; we discuss it in detail in Chapter 5, and provide highlights here.

It happened in part because of changing scholarship. A generation of legal scholars has developed arguments for fair use as they have analyzed copyright’s effect on cultural expression. At the same time, cultural studies scholars have showcased the relevance of fair use to their work, which often involves analyzing popular culture. Teachers and scholars are beginning to take up the fair use banner, publicly using their rights and encouraging their students to do the same.

Settled, established communities of creators, administrators and users—filmmakers, teachers of English and visual art, librarians, makers of open course ware, poets, and dance archivists--have identified fair use as a necessary tool for them to use to achieve their missions. They have turned to the sturdy tool of consensus interpretation, by making codes of best practices in fair use through their professional associations.

Members of these communities have become active advocates for fair use. Their organizations and representatives have appeared before the Copyright Office to testify about the way that the DMCA, which makes illegal the breaking of encryption on DVDs, limits their ability to employ fair use in their work.

Remix artists of all kinds, working online, have come to adopt the claim of fair use as an anti-corporate banner. They trade information on fair use in conferences and conventions. When they receive takedown notices on YouTube, they issue counter-takedown notices and explain why their uses are fair. Remixers have also gone before the Copyright Office to protest the way that the DMCA impedes their creations, which are often socially critical.

New businesses have flourished employing fair use, and their trade associations have supported them. Google, the Consumer Electronics Association, and the Computer and Communications Industry Association have all advocated for fair use. Legal and professional services for communities of practice, such as lawyers and web developers, have built their fair use expertise to serve their clients better.

Think tanks and advocacy organizations have promoted fair use. The Electronic Frontier Foundation, Public Knowledge, the American Civil Liberties Union, Duke University’s Center for the Study of the Public Domain and the Stanford Fair Use Project have all taken action on fair use. Between the scholars, the creators, artists, and organizations, fair use is emerging out of a twilight existence where, for decades, it had lived. During those decades, many professionals and especially professionals in the corporate media environment—whether broadcast journalism, cable documentary, or newspapers—routinely and extensively employed fair use. But if you weren’t a professional, you might not even have heard of it. That has changed.

The goals of various actors in this resurgence of fair use differ. Some simply want to assert their rights to be able to improve their work, lower their costs and start or grow new businesses. Some want to expand the sphere of freedom of expression, so that copyrighted culture does not become off-limits for new work. Some believe that an expansion of fair use rights is imperative both to keep fair use as copyright policy is tinkered with, and to maintain the crucial principle of balance between owners’ rights and the society’s investment in new cultural creation. Some believe that fair use, exercised to the maximum, will provide concrete experience of the limitations of today’s copyright law, and point to more effective change. They all share a common understanding that individual and community action simply to assert their rights has an immediate and long-range effect on markets and policy.

[read full post]