I attended this extremely lively CAA session on art and appropriation yesterday at the NYC Bar Association and would like to re-cap:
Reexamining Appropriation:
The Copy, the Law, and Beyond
Friday, February 16, 10:00 am - 12:30 pm
New York City Bar Association
Inappropriate? Copying in the Renaissance
Lisa Pon, Meadows School of the Arts, Southern Methodist University
The Reign of the Quotation–Appropriation and Its Audience
Johanna Burton, Princeton University
From Appropriation to Postproduction
Jaimey Hamilton, University of Hawai'i, Manoa
Appropriation v. Piracy, Round Two?
The Hon. Pierre N. Leval, United States Court of Appeals for the Second Circuit
William Patry, Senior Copyright Counsel, Google
Chairs:
Martha Buskirk, Montserrat College of Art;
Virginia Rutledge, Cravath, Swaine & Moore LLP
***
I will try to parse the speakers' presentations briefly below:
Lisa Pon's discussed the fact that "imitation" and copying was central to artistic practice during the Renaissance. She pointed to Vasari's "Lives" and his exhortation to one and all to imitate Michelangelo. She also talked about an interesting and apparently famous intellectual property dispute between Albrecht Durer and the Italian engraver Marcantonio Raimondi. (I'm sorry I haven't got more to say about this paper -- the speaker was thorough and the slides were really interesting. I was just getting into taking notes...)
***
Johanna Burton's talk began by focusing on appropriation artists of the 1980s -- Douglas Crimp, "Pictures", etc. Her paper was great: well-delivered, rangy, thorough, and full of interesting tidbits, such as a comparison of Sherrie Levine's artist statement with its Barthesian "Death of the Author" origin:
The birth of the viewer must be at the cost of the painter.
--Sherrie Levine, 1981
I
scribbled down some great lines from Johanna's presentation: "Artists
insert themselves into the sources they pilfer"; "The meaning of a
painting is not its origins but its destiny."
She wound up with a brief discussion of Jonathan Lethem's recent Harper's article, The Ecstasy of Influence, whose title is a play on critic Harold Bloom's The Anxiety of Influence. She takes issue, not with Lethem's assertion that appropriation is in fact necessary to creativity, but with what she felt was his hifalutin assumption that the "commons" is indeed common to everyone, across the boundaries of class, education, access, etc. She points out that there are many contradictory ideas about the commons. The only odd thing is that she never once mentioned the fact that Lethem's piece is a cut-up, after the style of Burroughs, and that it's punchline is that it is entirely appropriated from the writings of others.
***
The third speaker, Jaimey Hamilton spoke of the importance of appropriation to the new media generation. Her talk was peppered with terms perhaps still new or hazy for some members of the CAA audience: open source, web 2.0, remixing, sampling, mashing, ripping, wikis, blogs etc. She also quoted German curator Beatriz Ruf, curator of the Tate Triennial, in suggesting that the term "appropriation" is too loaded with Duchampian baggage, and that perhaps we should find some better term. She discussed artists for whom not only is appropriation essential in terms of the making of their work, but also in terms of conceptual underpinnings: these artists all comment in various ways on the malleability of meanings and media in our society: they regularly "exploit the continual recontextualization of meanings." She mentioned the work of Douglas Gordon, Paul Pfeiffer, Steve Parreno, Pierre Huyghe Christian Marclay, Paul Miller and Cory Arcangel. She mentioned Kirby Gookin's fabulous movable feast of "piracy", copying and remixing, "Copilandia."
***
William Patry helped us segue from a discussion of art to one of law, no mean feat. His copyright blog, btw, is one of the most current, comprehensive ongoing discussions of fair use, art law, and authorship, around. He is the author of numerous treatises and articles on fair use including the new 7 volume treatise "Patry on Copyright". The most provocative point Patry made was that if there is a problem with copyright in the realm of visual art, it comes from within our own camp, and not from the courts. He pointed out that this is true for every industry now struggling with copyright and IP issues: the problems come from our own deep-seated contradictions.
Patry introduced Judge Leval to the room.
It's always amazing to see the huge conceptual disconnect between the world of law and contemporary art.... but having
said that, it's impossible for me to feel any negativity toward The Hon. Judge
Leval, as it is his formulation of
the concept of "transformative" use (which I have framed on my studio wall) that changed the standard of the courts for the better, and serves as an illuminating concept and useful tool in discussing and determining fair use practices. However, like most people in the realm of law (with some shining exceptions), his understanding of
contemporary art is rudimentary; he states this humble fact without reservation and cautions us against wanting anything more from the likes of judges (he doesn't mention lawyers).
Judge Leval expressed his surprise that we comprised an audience hostile to copyright, that artists in general and the previous speakers in the room could regard
copyright as a negative thing at all, or even a "capitalist tool." I find this perhaps disingenuous -- how could this surprise anyone who reads the news and keeps up with the corporate shenanigans of, say, the music industry, for example? I believe he was making a point about why copyright exists in the first place, and what it is supposed to be for: it was not something that originated in the court system and then imposed upon the populace. Generally, its the other way around.
Judge Leval stated: "without copyright,
authors and artists would still be at the mercy of and dependent on the
good graces of wealthy patrons for their living." Speaking of a disconnect -- yikes. He spoke of Bach having to grovel for money to produce a concerto -- sound familiar?
I suppose what's sad is that we don't make a living for the most part, and artists ARE at
the mercy of wealthy patrons, the current market system merely piggybacking
on an older system of patronage and and power and wealth... oddly enough, copyright
doesn't even really seem to come into it.
Winding up, Judge Leval clarified some confusion re: the two famous and
seemingly contradictory landmark Jeff Koons decisions: He discussed why you can't compare the
old Koons "Puppies" loss (1991) with the recent Blanch v. Koons win (2005); the old
case was operating under the old standard in place previous to
the 2 Live Crew case (1994), which basically made the world safe for parody, and where the idea of "transformative" use was finally
put into play in the courts, hence inaugurating a "new standard":
(b) Parody, like other comment and criticism, may claim fair use. Under
the first of the four 107 factors, "the purpose and Page II character
of the use, including whether such use is of a commercial nature . .
.," the enquiry focuses on whether the new work merely supersedes the
objects of the original creation, or whether and to what extent it is
"transformative," altering the original with new expression, meaning,
or message. The more transformative the new work, the less will be the
significance of other factors, like commercialism, that may weigh
against a finding of fair use. The heart of any parodist's claim to
quote from existing material is the use of some elements of a prior
author's composition to create a new one that, at least in part,
comments on that author's work. But that tells courts little about
where to draw the line. Thus, like other uses, parody has to work its
way through the relevant factors. Pp. 8-12. [Campbell v. Acuff-Rose Music, Inc.]
In the"Puppies" case,
the judge was not even considering whether Koons' use was
transformative; that wasn't yet part of the discussion. In the more recent case where Koons won, Judge
Robert Sack certainly was considering the transformative question...
Leval deemed the latter decision by Sacks as brilliant, informed,
"very long" and wonderful.
You can read it in full here [pdf]
One
of the most germane questions came at the end from organizing co-chair Virginia Rutledge, who asked
Leval if he thought that the importance of context and conceptual
underpinnings of works of art would ever finally trump
visual, formal (superficial) resemblance in the courts. And his reply was that -- to
his consternation -- most judges tend to be conservative to the point
of being reactionary when it comes to fair use.
Ending on a positive note, however, it was noted that law is not static, and it's a mistake to think of it as such; law is an evolving process, it changes and grows through the demands and needs of the people it is supposed to serve.
