[Comedies of Fair Use] Art

Andrew Raff
May 1, 2006

I didn't take notes on the presentations by Joy Garnett and Susan Mieselas. Laura Quilter posted an account of their dispute and some of the implications: comedies & tragedies of fair use: "'JoyWar' began when Joy Garnett appropriated a photograph she found on the Internet, and repainted it. Shortly after exhibiting it, she got a cease-and-desist letter from the photographer, Susan Meiselas. Joy’s art rapidly became a cause celebre among Internet artists and activists, who reposted Joy’s art and remixed it with many new works."

Here are my rough notes from the rest of the panel:
Lebeus Woods
-Woods v. Universal City Studios, 920 F. Supp. 62
-Woods was Unhappy with appropriation of image used in 12 monkeys, because it was commercial for the purpose of making money and involved Bruce Willis.
-Sought (and obtained) a preliminary injunction.

Art Spiegelman
-Short of pure communism, there's no answer to this debate. That's something we can discuss at the next conference, otherwise IP is completely divorced from the laws of real property.
-Mad magazine led the development of the right to parody
-The first thing learned after loving the (c) was to avoid lawyers at all costs.
-Again, the length of the lawsuit takes forever.
-"I figured as a hobby, I'd get involved in the legal system"
-Eventually needed to switch over to a much less expensive lawyer who got things done
-On both sides of this all the time.
Recently, he completed a cover for the forthcoming 2006 edition of Dave Eggers' Best American Nonrequired Reading. The forward is by Matt Groening. The bottom of the cover art includes a squiggly yellow graphic element. [Spiegelman showed a slide of the cover art, but that is as yet unavailable on the web.] Everyone loved it, except for the publisher, who wanted to remove the image of Bart Simpson's head. Spiegelman responded: "That's not Bart Simpson, that's a graph of US prestige since WWII."

Carrie McLaren
Displayed a number of exmaples from the illegal art exhibit, including
-Minor Threat / Nike Major Threat side by side
-Diana Thoneycroft "Mickey, Goofy, Barney"
-Kieron Dwyer "Lowest Common Demoninator" Comics (sued by Starbucks and settled)
-Tom Forsythe Food Chain Barbie (Sued by Mattel, the artist won and recovered attorney fees)
-The law isn't a great tool for deciding what is or is not derivative art.
-Don't see a lot of companies going after fine artists, but going after mediums that are reproducable.

Joel Wachs (Andy Warhol Foundation)
-As a foundation that represents an artist who freely borrowed from culture and who was also a savvy businessman himself ("The best art is being good in business"), agrees with most everything said this morning. It's more about values, in accordance with the values of Warhol. Non-commercial stuff is cool, but go after commercial uses.
-Warhol left his entire estate to a foundation, which has created a museum in pittsburgh and engaged in his mission to support the visual art.
-Sale of art and licensing name/images to go into an endowmnet, hose earning are used to support the visual arts. (Next year, plans to give away $10m in grants)
-Artist and scholar friendly while remaining very business savvy. Respect the creative process (reference Warhol in the making of their art without challenge and without charge and to let scholars use Warhol material without ever questioning the use.) On the other hand, when someone wants to use copyrights for commercial gain and competes with the foundation's own comemrcial licensing program, then the foundation is aggressive in going after those.
-Not inconsistent because it is about values.
-Best example is the use of Campbell soup. The Warhol foundation recently made a lucrative licensing deal to use Warhol's images of Campbell's soup to promote Campbell's soup.

Panel discussion/audience Q&A
Mieselas: Decontextualizing the image was the key provocative aspect. It's taking the historical moment out of context. It grates because it had that particular history and makes it difficult to deal with.

Wechsler: But what makes it an outrage?

Miselas: My question was why is this about riot? Problem is about the recontextualization of the concept into something it wasn't about.

Spiegelman: Photography is taking things out of the world. What about the fact that the guy was throwing a molotov cocktail in a Pepsi bottle?

Miselas: To say that photographers simply scoop, it's deeply insulting. That is at the core of where do things belong and who do they belong to. You stressed how long it takes you to draw things. How long do you think it took me to be there in Nicaragua to get that image?

Spiegelman: All images requiring taking things out of an understanding of the world.

Title of this Magritte painting is "Forbidden to reproducing."
I'm not reproducing the painting, I'm reproducing a preproduction of the foundation. If you were representing the René Magritte foundation, would you allow this?

Wachs: Since this is an academic conference, it's scholarly, we'd allow it. If it was a t-shirt, we'd go after you. For books, it depends based on commercial/non-commercial and the size of the print run. If you used it on the cover, you'd probably be charged for it.

Audience question: It seems to be the right to fair use (as an artist) stops when you piss off your fellow artists. Is there any other line we're going to find here. If the artist doesn't object, you've got fair use. What if an artist makes an image that incorporates Warhol art, but then starts selling prints and mugs,

Wachs; We'd never tell the artist not to create, but would go after them once they commercialize the work (start selling prints, shirts and mugs.) Don't want to base it on content, but only on commercialism.

Woods: it's one thing for an another artist to use it in their drawings, but when its a Hollywood music studio, using it only to make money, then I have a problem with it.

Audience question: Who decides?

Woods: It's a human judgment issue-- it's up to the judgment of the author. If Joy and I had talked about this beforehand, we wouldn't be here now talking about this. If you don't think that any conversation is necessary

Joy: while authors deserve respect, especially from other authors, there is a limit on how much control the author has can exercise over the way that work is interpreted, especially where that work is reportative-- bringing information out from a war zone and information that would otherwise not be experienced, they are still just one author framing an event. To me, it seems like an awful lot of control. that event was brought out to the public because it belongs to our common cultural experience and its important to quote it to think about it. Part of my project is provocative-- to say that you can't control your image in the world today. The photographer's intentions are gone-- Susan's struggle against that is amazing and laudatory. Once the image is out there, you can't control who uses it or how. It's wrong to try to impose total control. I was not interested in collaborating. Would I have had to ask permission from all of those authors?

Woods: That's why we have law in this country. in my case, I chose to object to a particular use for my work. I wouldn't choose to object to all uses. I put my work out there. I chose a line and it crossed that line and the law gave me the opportunity to object.

We see authors in court all the time. It's better when they're dead. Long dead.
We had a case a few years ago involving Rick Dees involving a Johnny Mathis tune [sings a bit]

{moderator: "look out Ashcroft!"}

Imagine Cervantes was alive today and saw Man of La mancha and have no doubt that if Cervantes was invited to see Robert Goulet, he would have had the same reaction -- it's an abomination.
It's not that both sides are right. one side is right and one side is wrong. I think that if you put something out there, it's no longer yours. You put it out there and it becomes part of our reality. If someone makes money off that, you should get a piece of the action.
No matter how offended Lebeus was about Bruce Willis sitting in the chair, he didn't stop the movie-- he grabbed the money. The artists can be bought off.

Echs: The priblems is that he wasn't asked beforehand. If there is no permisison, then it wouldn't be made, then it wouldn't be a problem.


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