NEWSgrist - where spin is art

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 ↓

On Appropriation: Penelope Umbrico Weighs In

(Left) Photograph by Patrick Cariou from his 2000 book Yes Rasta, (right) painting from Richard Prince's 2008 "Canal Zone" series (powerHouse Books, Gagosian Gallery)

Detail from Suns (From Sunsets) from Flickr, Penelope Umbrico, 2006-ongoing (Penelope Umbrico)

 

This article is more interesting than its title suggests:

via Studio 360: 

APPROPRIATING IMAGES FOR ART: WHEN IS IT OKAY?

Interview 

Friday, April 06, 2012

 

Last year the artist Richard Prince was sued by Patrick Cariou, a photographer, for copyright infringement. Prince had used dozens of Cariou’s pictures — arty portraits of Rastafarians in Jamaica — in his paintings. This practice of appropriation, incorporating other people's work into new artworks, is well established in the art world, and Prince has based a successful career on it. But a federal judge ruled for Cariou last year, and if Prince loses his appeal, a swath of contemporary art making will become illegal.

Kurt Andersen spoke with attorney Michael Rips and artist Penelope Umbrico about the implications for the case. 

Rips represented Jeff Koons in a very similar case in the 1990s. (Koons had used a cute tourist postcard — a couple holding puppies — to create a multimillion-dollar sculpture.) These cases aren’t easy to argue, Rips tells Kurt. "At the end of the day, however much you appropriate — whatever you're commenting on — before you can have a copyright violation you have to show damages. You have to show that the person from whom you borrowed has been economically injured." Rips feels that the markets in which Cariou and Prince sell their work are quite distinct, so he isn't convinced Cariou experienced injury.

Penelope Umbrico appropriates images from the internet for much of her work. In her series called Suns (From Sunsets) from Flickr she used (without permission) bits of hundreds of amateur photographs. Umbrico contends that because her work is fragmentary and the original image so ubiquitous, it doesn't make sense "to ascribe an individual authorship in the original photograph."

And while Richard Prince's appropriation of Cariou's Rastafarians may be more obvious, she defends his use of the photos. “Prince is using that as an aesthetic device in his work. He is not interested in authoring images, he's interested in making paintings and employing images to be active inside the frame of his paintings."

If Prince loses the appeal, appropriation art like Umbrico’s will be on shakier ground legally. But she insists she won't change her method. "It'll make me more adamant about working this way."

 

Go Penelope!

The Impermanent Book: The Piracy Project

Right: No se lo digas a nadie by Jaime Bayly. Left: pirated copy with two extra chapters added by an anonymous writer. Bought in Lima Peru, The Piracy Collection.

Via Rhizome.org:

The Impermanent Book

The Piracy Project | Thu Apr 19th, 2012 10:05 a.m.

A few months ago, Jonathan Franzen, author of The Corrections and Freedom, was quoted by The Telegraph from his Cartagena’s Hay Festival presentation:

“Maybe nobody will care about printed books 50 years from now, but I do. When I read a book, I’m handling a specific object in a specific time and place. The fact that when I take the book off the shelf it still says the same thing - that’s reassuring… and he goes on … Someone worked really hard to make the language just right, just the way they wanted it. They were so sure of it that they printed it in ink, on paper. A screen always feels like we could delete that, change that, move it around. So for a literature-crazed person like me, it’s just not permanent enough.” 

His speech raised heated discussions in newspaper columns and on the internet. The focus was mainly on defending technology and e-books as a viable and improved evolution, and on how he was being retrograde.  What was missing from the discourse was the fact that technology has also violently altered printed books in a way from which there is no return. We are so disconnected from the means of production that nobody seems to be aware that books are produced very differently then they were 100 years ago. Digital files are exchanged between writers, publishers and printers all over the world.

In the context of the Piracy Project, which we initiated in London in 2010, we discovered cases, which not only took control over the object, but over the content. Inspired by Daniel Alarcon's article in Granta magazine, “Life Among Pirates”, we traveled to Peru and discovered, for instance, a pirated version of Jaime Bayly’s novel No se lo digas a nadie with two extra chapters added. This physical object may look obviously pirated to a trained eye but could easily pass as the original if you were not looking for differences. The extra chapters are good, good enough to pass undetected by readers.

These books are sold in small markets, bookshops or by street vendors at traffic crossings. We had to buy several books and to compare page by page until we found a book with extra content. Asking the vendors for help didn’t work. They were quite offended with the insinuation that they carried modified books. Buyers don’t want to read a book by an anonymous author when they are buying Mario Vargas Llosa.  

Friends in Peru seemed extremely surprised to see an altered book. The same type of trust that Franzen had applied to printed books was broken. What have they been reading? According to popular literary theory, when reading a book we become joint authors by virtue of subjectively interpreting and shifting the context through our own personal sets of experience. In this sense, it might be very difficult to realize, in discussion with others, whether or not the book you just read has been altered. And then what happens when that seed of distrust is planted in your head?

A similar experience was reported by a friend when she grabbed one of the copies of Franzen’s novel Freedom that was accidentally printed from an earlier draft and distributed in London for a few weeks before being re-called, destroyed and replaced by the “correct” version. Knowing that there were mistakes in the text, or passages that had been added made her read the text in a very suspicious manner. There were quite a few passages where she was completely sure she had spotted one of the “wrong” bits. ”I’ll never know if I was right in my suspicions.” she said  “Comparing the two versions seemed like too much work. Anyway, I quite like the idea of having read the text in this undefined space.”

The modified books in Peru are a direct result of technological changes. Older pirated books looked more like photocopies. Re-typing a whole novel is a lot of work and inserting new content would be demanding. Currently, pirated books are produced using original text files stolen from the publishers or a pdf in transit to the printers. 

A respectable percentage of all the books in the world are currently printed in the Guangzhou province in China. The distance between publishers and printers embedded in a local culture, which has a different understanding of copying and its moral implications has created an interesting phenomenon. China is not only inundated with pirated versions of western books (which many suspect may be simply cases of printers printing extra copies of the originals) but it also has generated an interesting number of "curators," who select material from all these different publications and collate new volumes – a bizarre reflection of internet content curators.

The piracy of architecture books is very common in China and vendors regularly visit architectural practices carrying a specially tailored selection. It’s a mixture of our contemporary curatorial culture and Chris Anderson's Long Tail theory. The Architectural Association in London, for example, seems to be quite influential. It was the only university press we encountered on our visits that deemed worth the extra expense of translation. Chinese architects proved not to be that popular, but Rem Koolhaas is a best seller. It is interesting to note how the selection of books for sale made by the pirate sellers and the cross-contamination of taste and interest they carry from one office to the other could be one of the defining elements of how urban China is going to look in the next twenty years. But some of these copies are not simple mechanical translations. We found a copy of a pirated MARK Magazine which seemed condensed from six other Mark issues and edited down into this one edition. We bought it fascinated with the idea that somebody had gone through the issues selecting what they considered important. But after comparing it with the originals we realized that the process wasn’t that obvious. It was the whole content of just one issue - only a full-page photograph showing a female Chinese architect was removed - with added pages from an unidentified Italian magazine, which was left in Italian.

We see similar tendencies in contemporary publishing. For instance, AND Public, another AND Publishing project exploring the potential of print-on-demand (POD). It is a platform for artists, writers and curators to use the possibility of printing books in very small numbers as they get distributed. The project gives users a distribution structure that tries to solve the biggest question in self-publishing: I made my book now how do I find its public? 

But it also raises questions of how books exist as permanent objects. In traditional publishing one version of a book is printed. Any new edition may bring corrections or modifications, but each is clearly attributed. With print-on-demand, the author has the option to keep changing their artwork and re-printing the book. "Editions" or versions of the book are not necessarily identified.

Zadie Smith, spoke at the New York Public Library in 2011  about her observations at literary festivals. She saw writers sitting behind curtains at literary festivals, armed with red pens, correcting their own two year old books just before their readings. This was a unique chance to re-address the text and to make real the book they wished they had written. With AND Public, as with many other POD platforms, to re-write is a concrete and constant possibility. There won’t be a guarantee that the POD book you bought is identical with the next buyer’s book. In fact, many artists use this mutable production process as an intrinsic part of their work and keep changing their texts to test the conceptual boundaries of the book.

In the beginning of recorded history, books used to be copied by hand and constantly modified through these interpretations. It is the technological advances of the analog printing press that construct our contemporary idea of books as fixed objects, where immutability is a key factor that allows for mass and consistent reproduction. But now, with digital printing technologies, mass production and mutability live hand in hand. The values and attributes that define books are much more malleable than we wish to face and, once again, we must be diligent of where knowledge is being generated. It is undeniable that books are an incredible technology that will most likely never be abandoned, but that doesn’t mean they will remain the same. They have never remained the same.

Street vendor in Lima, Peru, 2010  (photograph  Andrea Francke)

---

 

The Piracy Project is an international publishing and exhibition project exploring the philosophical, legal and practical implications of book piracy and creative modes of reproduction. Through an international call for contributions The Piracy Project has gathered a collection of more than one hundred modified, appropriated and copied books from artists across the world. The collection, which is catalogued online, is the starting point for talks and workgroups around the concept of originality, the notion of authorship and politics of copyright. The next set of events will be hosted by The Showroom in London in 2012. The Piracy Project is an collaboration between AND Publishing and Andrea Francke. 

If you are interested to submit a book project for the collection please email and.publishing@csm.arts.ac.uk

AND, is a platform exploring new digital technologies to publish conceptual artists' books. Photocopied or glossy printed, we define digital print-on-demand as a tool to directly interact with an audience. Due to short print runs (starting from one copy) and low productions costs we can sustain an adventurous and inquiring creative practice without having to conform to the mass market. We’re also developing AND Public, a unique print-on-demand facility for self-publishing which allows artists to publish and distribute their own work. AND is run by Lynn Harris and Eva Weinmayr. www.andpublishing.org

 

Required Reading: The Latest on Cariou v Prince

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:

 

via ARTINFO:

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.

 

Richard Prince: The Ocean Club, 2008, from the Canal Zone series.

via Ruling Imagination: Law and Creativity:

What did Jackson Pollock intend when he painted Lavender Mist? Cariou v. Prince, and the importance of scripting the artist’s words

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?

As Sister Wendy Beckett explains in the Encyclopedia Britannica Online, in words that are so well accepted they are almost trite,

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. [...]

 

(Emphasis mine).

Copyright Shakedown!

Image: self-portrait by a macaque, via Techdirt

According to Artnet News (July 12, 2011), NEWSgrist recently coined the term "Copyright Shakedown" while trying to keep abreast of the numerous, unfortunate and usually merit-less copyright infringement suits popping up all over the place. Here's a round-up of recent shakedown and takedown headlines, starting with some astonishing monkey business:

Monkeys Don't Do Fair Use; News Agency Tells Techdirt To Remove Photos
By Mike Masnick Tue, Jul 12th 2011 11:08am, Techdirt

Art & Copyright: RYAN MCGINLEY SUED IN COPYRIGHT CASE
by Rachel Corbett, July 11, 2011, Artnet

Ryan McGinley Latest Artist to Be Hit With Copyright Suit
Claudine Isé, July 12, 2011, Bad at Sports

(Even over at Clancco, where copyright maximalism tends to hold sway, the McGinley case is met with an eyeroll) - Artist Sues Artist, and Galleries, for Copyright Infringement July 11th, 2011

Another Fair Use Debacle
NEWSgrist, July 07, 2011 at 08:23 AM

Kind of Screwed
By Andy Baio, Posted Jun 23, 2011, Waxy.org

Kind of Bloop cover art lawsuit
Posted by Liz Berg on June 24, 2011 at 10:44 AM WFMU's Beware of the Blog

Kind of Bloop: A Problem With Copyright Law
By Randy Finch, June 2011, Randy Finch's Film Blog

 

more to come, I'm sure....