They’re trying to make it illegal for you to respond to the imagery your bombarded with every day.

From NEWSgrist comes the sad news of Mike Kelley’s death, along with a very interesting interview of Kelley conducted by Glenn O’Brien. An excerpt:

GO:?I’ve remembered an event and thought I’d said something when actually it was somebody else who said it or vice versa. I think, especially in writing, so much of plagiarism is completely unconscious.

MK:?I have experienced that often. I’ve stolen ideas, and people have stolen from me. I’m all for it. That’s the way things get created. That’s how culture grows. When there’s an amazing idea, you take it and run with it. I mean, you’re going to take it someplace else than the source anyway. There are a lot of artists who’ve worked at that specifically. One of my favorite writers is the Comte de Lautréamont, and much of his writing is constructed from plagiarized texts. Who would claim that his work is no different than what he plagiarized?

GO:?One thing that the Internet seems to be doing is eroding the idea of copyright and originality. People are just taking bits of things and using them in a very free way.

MK:?That’s great. And the corporate entertainment industry is trying to stop it from happening. Think about it: Andy Warhol could not have a career now. He would be sued every two seconds.

GO:?It’s given a lot of work to the lawyers.

MK:?Copyright laws are terrible for culture. It’s illegal to respond to the imagery that surrounds you; you’re bombarded every minute of the day with mass-media sludge. It should be the opposite: Everybody should have to respond to it. This is what should be taught in the public school system.

William S. Burroughs should be a major role model: All students should be given tape recorders and cameras to constantly record the gray veil that surrounds them, so that they can recognize that it’s even there-and manipulate it. Most people are not aware of the white noise they exist in. Tape recording and photography allowed people to become aware of what was invisible to them for the first time. We’re surrounded by invisibility. That’s what I think art can do-make things visible.

The Beach Boys: Villains, just see what you’ve done.

One of the oddest points to get across to non-lawyers, lawyers-to-be, and even many lawyers is that what the law prescribes and what actually happens are 2 entirely different things and that it is as crucial to being a good lawyer to understand what actually happens and why  as it is to know the laws.

It starts out pretty simply with beginning law students. The first time someone says, “But you can’t do that because it’s against the law,” I ask him whether he’s ever driven faster than the speed limit. And then I look at him and say, “But you can’t! It’s against the law.”

The law does, of course, affect a lot of what happens. You’ll speed based on some unconscious calculation regarding the benefits of getting where you’re going faster against the risk of being ticketed and the cost if you are. You might also take into account other costs such as dangers posed by children in the neighborhood, the driving conditions, and the reactions of any passengers to your speed.

It might seem like a simplistic example, but that’s what you have to become conscious of when you’re a lawyer: the risks and costs associated with your behavior, including the risks and costs imposed by law. And if you only consider the risks and costs imposed by law, you’re probably not doing your clients a lot of good.

I am convinced, however, that the central problem with the contemporary U.S. legal system is the cost of actually using the law to get what the law prescribes. It’s insane how much it costs to sue or be sued, and the insanity of those costs skews so much in our society in favor of those with a lot of money regardless of the legal ramifications of that skewing. In copyright, a lot of people complain that digitized information and the internet have made it too expensive to stop people from stealing their property. But far more of an impact is felt by what is called “copyright overclaiming,” the assertion by wealthy (and typically corporate) copyright holders that their rights have been infringed by people who cannot afford to vindicate their legitimate rights to use the copyright material in a lawsuit.

As Richard Posner has written:

Here is a very worrisome problem concerning fair use. It has to do with a dichotomy long noted by legal thinkers between the law on the books and the law in action. They often diverge. And fair use is an example of this divergence. As I said in an earlier posting, fair use often benefits rather than harms the copyright holder. However, it doesn’t always; moreover, even if a copyright holder is not going to lose, and is even going to gain, sales from a degree of unlicensed copying, if he thinks he can extract a license fee, he’ll want to claim that the copying is not fair use; and finally, because the doctrine has vague contours, copyright owners are inclined to interpret it very narrowly, lest it expand by increments.

The result is a systematic overclaiming of copyright, resulting in a misunderstanding of copyright’s breadth. Look at the copyright page in virtually any book, or the copyright notice at the beginning of a DVD or VHS film recording. The notice will almost always state that no part of the work can be reproduced without the publisher’s (or movie studio’s) permission. This is a flat denial of fair use. The reader or viewer who thumbs his nose at the copyright notice risks receiving a threatening letter from the copyright owner. He doesn’t know whether he will be sued, and because the fair use doctrine is vague, he may not be altogether confident about the outcome of the suit.

The would-be fair user is likely to be an author, movie director, etc. and he will find that his publisher or studio is a strict copyright policeman. That is, since a publisher worries about expansive fair uses of the books he publishes, he doesn’t want to encourage such uses by permitting his own authors to copy from other publishers’ works. So you have a whole “law in action” law invented by publishers, including ridiculous rules such as that any quotation of more than two lines of a poem requires a copyright license.

Whether it’s the writer’s own publisher or the copyright holder, the instances of copyright overclaiming are endless and seem downright silly until you realize the person being sued by the copyright holder really has no choice. Money rules.

Now, from artnet, comes the latest example of a rich has-been using his a flimsy claim of copyright infringement to squeeze a few more dollars out of an up-and-coming artist:

Perhaps no one was more excited by the long-awaited release of the Beach Boys’ unfinished 1966 album Smile than Erik den Breejen. After Smile came out last year, the young painter (and lifelong Beach Boys fan) set to work on a series of paintings that transformed the lyrics into brightly colored text-blocks, assembled into shapes of ocean waves and smiling lips.

When the exhibition opened at Freight and Volume gallery in December (and was reviewed in these pages by Charlie Finch), den Breejen sent word of the show to Beach Boys lyricist Van Dyke Parks. Den Breejen had tracked down Parks’ manager, thinking that she might share his artworks with his idol. A few days later, Den Breejen was met with a less than enthusiastic reply: a cease-and-desist letter mailed to the gallery from Parks’ attorneys.

* * *

Richard Prince doesn’t have to describe one of his paintings as a Rhino in Hot Pants Shouting, “Repent, Repent!” for it to be so.

Tom Waits on the “meanings” of his songs:

If you break open a song, you’ll find the eggs of other songs. Misunderstandings are really kind of an epidemic and acceptable. I think it’s about one thing, but someone else will say, ‘That song is kind of a rhino in hot pants on a burnt rocking horse with a lariat shouting, “Repent, repent!” I think that’s great.

Why do I bring up Waits rejoicing in the fact someone might hear one of his songs as a “kind of rhino in hot pants on a burnt rocking horse with a lariat shouting, “repent, repent!” Because the lawyer for Patrick Cariou believes that a work of art appropriating another work can only be interpreted to be sufficiently “transformative” of that earlier work if the appropriator expresses in words a transformative purpose. Richard Prince, in appropriating Patrick Cariou’s photographs for his own artistic purposes, said he had no real interest in the meaning behind Cariou’s work, and that he used it strictly as “raw material,” that it was “taking for the sake of taking.”

Cariou’s lawyer thinks that Prince’s inability to state an artistic purpose is fatal to his case. In his eyes, the law requires a 2-step process: “First the defendant has to say” he was engaged in a transformative use of the work he was appropriating. “Only then does the court go on to say, ‘Well let’s see if this is reasonably perceivable.’”

As I made clear yesterday, and as I think Tom Waits makes clear far more vividly, it seems absurd to limit the meaning of a work of art to whatever the artist might state it is. Nor is this particular controversial. The phrase “intentional fallacy” was coined in the title of an influential scholarly article (Wimsatt and Beardsley 1946) claiming that artists’ intentions are neither available nor desirable as a standard for assessing art. As has been pointed out, “Intentionalists disagreed, arguing that any sense of the artist’s intention, however obscure, can be a useful resource in interpreting a work of art.”

But the point is, even “Intentionalists” acknowledge that judging, interpreting, and assessing art calls on attention to the art and all it evokes in the eyes of the viewer. Those judgments, interpretations, and assessments are never limited to what the artist wanted the viewer to see and think.

So Cariou’s lawyer is advancing nonsense when he suggests the court should be limited in that way. Nor is the precedent for court reliance in making fair use decisions on the expressed intent of the appropriating artist particularly compelling support for that nonsense. It is true that in Blanch v. Koons the U.S. Court of Appeals for the 2d Circuit relied on what Jeff Koons stated his purposes were in appropriating a photograph for use in one of his paintings. But there were no competing interpretations submitted to the court. As the court pointed out: “Koons asserts — and Blanch does not deny — that his purposes in using Blanch’s image are sharply different from Blanch’s goals in creating it.” Quite simply, the court was persuaded by Koons’ explanations. That the court was so persuaded does not mean, however, that the artist’s explanations are the only means by which the court could be persuaded.already stated their intent to parody. Nor, as Cariou’s lawyer contends, did a lower court find that 2 Live Crew’s re-working of Roy Orbison’s “Oh, Pretty Woman” depended on 2 Live Crew’s assertion their song was a “parody.” In fact, the Court found that 2 Live Crew’s words parodied Orbison’s and remanded the case so a lower court might determine (a) whether there had been any negative economic impact on sales of Orbison’s song in the potential “derivative market” of rap cover versions, and (b) whether the quantity of musical elements taken from Orbison’s song were more than necessary to 2 Live Crew’s purposes. Campbell, 510 U.S. at 590-91. After remand, the case settled, and there were no further court hearings.

Joy Garnett Lectures on Painting, Mass Media, and the Art of Fair Use

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

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. “That argument fails because, absent a justification for the appropriation, taking copyrighted work in order to create ‘something new’ has no practicable boundary and would effectively eviscerate the rights of copyright owners.”

After all, they point out, Prince plainly, arrogantly, and perhaps fatally, said in district court that he had no real interest in the meaning behind Cariou’s work, and that he used it strictly as “raw material.” It’s “taking for the sake of taking,” Cariou’s lawyers argue.

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.

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):

The district court found Prince’s work was not transformative based entirely on Prince’s apparent inability to verbalize the meaning of it to the court’s satisfaction, and the court’s own conclusions about Prince’s subjective intent.  See SPA-17-20. But transformative meaning must be assessed first and foremost by observation of the work itself, and whether new meaning and expression may  be reasonably perceived from it.  See Campbell, 510 U.S. at 582-83. In Campbell, the Court did not demand testimony from 2 Live Crew, or speculate about their subjective intentions. It concluded that elements of parody could reasonably be perceived from the work itself, and that was enough  to establish its new meaning and expression. See id.

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.

Other rules that protect First  Amendment interests do not ask the speaker to demonstrate the value of her speech, or require her to persuade a judge of its worth.  Neither does copyright.  See Bleistein v. Donaldson Lithographing Co., 188 U.S. 239, 251 (1903) (Holmes, J.) (“It may be more than doubted, for instance, whether the etchings of Goya or the paintings of Manet would have been sure of protection when seen for the first time.”).

The long tradition of appropriating existing images in the context of collage and other expressive practices described in Section I clearly demonstrates the important new meaning and expression these uses deliver. The Court should recognize that the use of existing images in visual art may convey a wide array of transformative meaning that goes far beyond direct commentary on the original and is not limited by the expressed intentions of the artist.

Cariou v Prince Appeal, Brief for Plaintiff-Appellee

Cariou v Prince Warhol Foundation Amicus Brief

The motion picture and music industries won’t give up trying to protect their money-making models even if they are obsolete.

Bill McGeveran in the Guardian makes clear that the film and music industries aren’t going to go away, but that there are ways to to address legitimate copyright concerns without PIPA and SOPA’s utter inadequacies:

At the end of a Hollywood blockbuster, when the vanquished villain declares that he should have won and that we haven’t seen the last of him, we all know what it means: the sequel is coming.

So, Hollywood’s top lobbyist, former Senator Chris Dodd, followed a familiar script last week after sweeping online protests derailed the Stop Online Piracy Act (Sopa) and Protect IP Act (Pipa), a pair of legislative proposals backed by movie and music distributors. Dodd snarled that his opponents had misled the public and vowed to continue pressing for new laws to combat unauthorized copying of intellectual property. Coming soon to a congressional hearing room near you, it’s Sopa II: Revenge of the Content Industries.

. . . . Even Dodd’s enemies acknowledge that these sites pose a problem, though many question industry estimates about its scope.

Those of us who opposed the excesses of Sopa and Pipa need to prepare for the next round. . . . At a minimum, Congress must address three other problems as well.

First and foremost, Sopa II needs to take due process seriously. . . .

Second, the standards for judging infringement must be clear and must be consistent with existing intellectual property law. . . .

Finally, these bills cannot shift IP owners’ duty to safeguard their own rights onto innocent bystanders like Google, eBay or Facebook. Open online forums enable millions of daily communications from ordinary people. Intermediaries cannot examine every post searching for links to pirates. That’s why federal law exempts them from liability for nearly everything their users post independently – even fraud or defamation. IP already gets special treatment, because intermediaries must remove infringing material if rightsholders complain.

Clay Shirky on why SOPA & PIPA won’t go away: the old media companies want to make it too expensive for you (artist, consumer, teacher, etc.) to use copies even in legitimate ways

Off Book: The Evolution of Music Online (a/k/a progress SOPA would end)

Off Book: The Evolution of Music Online from PBS Arts on Vimeo.

Ray Johnson, dead 17 years ago today: “I have simply had to accept the fact that out of a life necessity I have written a lot of letters, and given away a lot of material and information, and it has been a compulsion.”

Guy Bleus:

Mail-Art is an international network of hundreds of artists who apply communicationmedia as artmedia. It concerns networkers or mail-artists who distribute their work primarily via mail, and less or not via galeries and museums. Through the years thousands (sometimes 50.000 is mentioned) of artists and non-artists have participated to this artistic movement. Ray Johnson once got the historical titel of “Father of Mail-Art” and that will always remain.

Ina Blom:

Ray Johnson [was the] initiator of the international mail art movement, . . . one of the most complex and idiosyncratic art projects of the 20th Century. A painter associated with the New York School of painting, Johnson had started it all the mid-1950’s, slowly building up a network of correspondents who would exchange objects and messages through the postal system. Initially it was Johnson himself sending out small collage-like works to a mailing list, urging people to keep them, to add to them, to change them, to send them to others, to return to sender. In time others joined in this activity, and in the course of the 1960’s and 1970’s the network grew way beyond the immediate reach and touch of Johnson’s own mailing activities. The initial network was named The New York Correspondance School (sic) – a spin or pun on the idea of artistic schools and the concomitant idea of art history as a succession of such schools. But then the quip about the history of Mail Art was itself a pun, of the most serious kind. Like so many other avant-garde artists (who left painting and behind) Johnson waseager to cut through the historicist temporality that informed modern art history and art production, with its logic of continual succession and supersession of artistic tradition. Cutting through this logic meant placing the production and thinking of art within the immanence of an eternal present, an uncontrollable present of events, not unlike the eternally present liveness of television [or the Internet? -- PF] – a technology and a communication medium which was just at that moment appropriated for artistic purposes.

On January 13, 1995, Johnson was seen diving off a bridge in Sag Harbor, Long Island, and backstroking out to sea. His body washed up on the beach the following day.Many aspects of his death involved the number “13″: the date; his age, 67 (6+7=13); the room number of a motel he’d checked into earlier that day, 247 (2+4+7=13), etc. Some continue to speculate about a ‘last performance’ aspect of Johnson’s drowning. Hundreds of collages were found carefully arranged in his home. He left no will and his estate is now administered by Richard L. Feigen & Co.

Chuck Welch, otherwise known in the mail art network as the Crackerjack Kid, has been an active participant in the international mail art network since 1978. In March 1995 — over 2 months after Johnson’s drowning – Welch received in the mail Johnson’s last self-portrait.

Clive Phillpot, in “The Mailed Art of Ray Johnson,” writes:

Examining the elements of Ray Johnson’s work, or disentangling the threads of his activity, would not be so worthwhile if he were not a superb graphic artist who pursues the embodiment of his thoughts with consummate economy and skill – and wit. The movements of his hand are responsive to the fluidity of his verbal and visual ideas. He animates the most unpromising shapes: he makes life flicker in the simplest forms. He is highly sensitive to words, both the way they look and the way they sound. He detects words within words, puns, and other oddities as easily as a heat-seeking missile rips through skeins of camouflage. He shapes letters and words deliberately and effortlessly, giving them, too, an organic life. He also knows how to animate the page, how to make the white spaces buzz. He combines pictures and texts in new, hybrid forms that seem genetically determined.

Mailings from Ray Johnson are a concatenation of ideas, sometimes distinct or decipherable, sometimes slippeng or sliding into one another Thus , Johnsonian physiognomical and biographical images mingle with recycled images of earlier work, with facets of a current art, and with other uncategorizable motifs and insertions, almost paralleling he flux of thought itself. Any of these elements may also overprinted with other images or texts, so that a mailing may be literally multilayered.

Reading such mail is simpler than reading a collage, for the layered elements can generally be isolated and examined. But Ray Johnson’s mind is so fertile, information-rich, and cross-connected, so full of potential visual and verbal associations, metaphors, puns, and rhymes, that while the flavor of his work may be enjoyed, some of the ingredients may remain mysterious. An unanticipated incident, image, or remark sets the Johnsonian circuits humming, and images and ideas print out that relate overtly or obscurely to the stimulus. Ray Johnson’s thinking is marvelously fluid and full of Leonardesque eddies. His ideas move and change, swerve and submerge, but continue on like a river.

Ray Johnson, however, describes the production of these “concatenations of ideas” as the result of his compulsion to give away material and information:

[T]he New York Correspondence School has no history, only a present, which was a pun, of course, on present as now, and present as a gift, a pun on my way of giving information and objects or whatever in letterform. . . .

I’d like to do my own history as to what I think happened. Every time I get any publicity or press everybody has a different version as to when anything happened or as to what anything was and I myself don’t even know when anything happened, or what happened . . . .

I have simply had to accept the fact that out of a life necessity I have written a lot of letters, and given away a lot of material and information, and it has been a compulsion. And as I’ve done this, it has become historical. It’s my resumé, it’s my biography, it’s my history, it’s my life. And now, people always come up and say, “oh, you’re the father, you’re the father of mail art, and everybody got the idea of it from you, or was influenced by you” . . .

Why would any musician give away his music for free?

Have you ever known a Dead Head? Do you know any other band with such a devoted following? Did you know that it has been said that the Dead “may be the most profitable rock band in history.” Do you think that’s possible for a band that never had a #1 song or a #1 album and had only 2 songs ever that cracked the Top 40?

Maybe the money involved will make you believe:

Despite the death of its leader Jerry Garcia in 1995, Grateful Dead Productions continues to generate about $60 million a year in sales and licensing fees. Pretty good for a group that no longer exists.

Surely making that kind of money requires a fierce protection of one’s intellectual property rights, right? Bono, after all, took to the pages of the New York Times to warn that without fierce protection of their copyrights the movie and television industries might suffer the fate of the music industry:

Caution! The only thing protecting the movie and TV industries from the fate that has befallen music and indeed the newspaper business is the size of the files. The immutable laws of bandwidth tell us we’re just a few years away from being able to download an entire season of “24” in 24 seconds. Many will expect to get it free.

A decade’s worth of music file-sharing and swiping has made clear that the people it hurts are the creators — in this case, the young, fledgling songwriters who can’t live off ticket and T-shirt sales like the least sympathetic among us — and the people this reverse Robin Hooding benefits are rich service providers, whose swollen profits perfectly mirror the lost receipts of the music business.

We’re the post office, they tell us; who knows what’s in the brown-paper packages? But we know from America’s noble effort to stop child pornography, not to mention China’s ignoble effort to suppress online dissent, that it’s perfectly possible to track content. Perhaps movie moguls will succeed where musicians and their moguls have failed so far, and rally America to defend the most creative economy in the world, where music, film, TV and video games help to account for nearly 4 percent of gross domestic product. Note to self: Don’t get over-rewarded rock stars on this bully pulpit, or famous actors; find the next Cole Porter, if he/she hasn’t already left to write jingles.

Rather than prevent their audience from taping their concerts, as every other band did, the Dead set it free and encouraged tapers, hence sparking a revolution. You’d think giving their music away would have dampened their success; instead, the freebies propagated it. Even though people could get the Grateful Dead product for free, the band found itself playing in larger and larger stadiums as the fan base swelled and album sales accelerated: 19 gold albums, six platinum, and four multiplatinum.

And so on the official Grateful Dead web site you can listen to any of the weekly Grateful Dead Radio Hour, which, “[s]ince 1985, the show has featured exclusive interviews, music from the roots and branches of the band’s musical family tree, and of course a generous helping of unreleased live and studio recordings.” At the Internet Archive, you can listen to a seemingly endless number of those bootleg recordings the Grateful Dead encouraged, and you can download for free those that audience members made. And if that’s just too much to  begin to comprehend, don’t worry! The Grateful Dead Listening Guide is a series of podcasts you can download to hear an expert’s introduction into the Work.

Perhaps it is not such a surprise, therefore, that we have articles like  the one entitled “Management Secrets of the Grateful Dead.”

And you can even listen — right here below — to a recording of the Grateful Dead concert I attended 33 years ago this week, on January 18, 1979, at the Providence Civic Center

PBF on the interrelationships between law, technology, and the arts on 9/15

On September 15 at 6pm I’ll be speaking at SPACES on the interrelationships of art, law, and technology. SPACES is a gallery, a resource, and a public forum for artists who explore and experiment. To find it, go here.  There will some minor similarities, I suppose, to the talk I gave at the Cleveland Institute of Art two years ago, but this one promises to be significantly different and better.

The Barnes Foundation and Ownership: Outsmarting Albert Barnes

James Panero sets forth the historical detail on Albert Barnes and his foundation, much discussed on this blog, in his article Outstmarting Albert Barnes:

All in all, the same brilliance that created a legacy for Albert Barnes would ultimately undo his legacy. Since the time of Barnes’ death in an automobile accident in 1951, the Barnes Foundation has been a case study in how an institution, created by a brilliant mind with clear intentions, can become irrevocably damaged through overly restrictive operating guidelines, unanticipated leadership problems, and the competing missions of other organizations and institutions. Much attention has been paid to the forces at work against the foundation, but in fact the seeds of destruction were sown by the hands of Barnes himself. As history has proven, decisions he made in life imperiled the perpetuity of his collection after death.

Barnes made every effort to preserve the vision of his creation after his death. For the past 60 years, what we have seen at the Barnes is what Barnes put there himself. At this moment, however, Barnes’ art collection is being removed forever from the walls he built for it. Barnes knew he was creating something unique in the annals of American art. He was also right that outside forces would emerge to alter his project after his death. What he never anticipated was that the very defenses he put in place to preserve his collection would eventually contribute to its undoing.

I can’t help but feel that part of the problem in the Barnes Foundation dispute was the way we glorify ownership. As Panero reports, Julian Bond, the son of Barnes compatriot and Lincoln president Horace Mann Bond, expresses the view of those who opposed the move of the Barnes Foundation collection to urban Philadelphia by stating: “The art belonged to him. He had the right to do with it as he chose, and these people, these vandals, stepped in and took it away from him.”

But do we really want someone controlling the fate of $30 billion of art (much of it bought from desperate sellers during the Depression) 60 years after his death pursuant to instructions that make no sense at all if one is concerned about the art as culture?

Appropriation art: is Richard Prince’s loss its end? I don’t think so.

The decision holding Richard Prince liable for infringing Patrick Cariou’s copyright in photographs Prince appropriated (which I wrote about 3 days ago) continues to inspire commentary. Donn Zaretsky does his typically excellent work in collecting the range of intelligent commentary and adding his own. He points to what he considers the key point in the decision, the judge’s belief that Prince’s appropriation was not sufficiently “transformative” to constitute fair use of Cariou’s photographs because Prince’s work did not sufficiently comment on or otherwise refer back to Cariou’s photographs (hyperlinks in original):

[T]he key bit is that the court rejected the fair use defense because, as Artnet’s Walter Robinson puts it, “Prince’s works do not specifically comment on Cariou’s originals.” (Robinson says: “Face it, the notion of ‘appropriation’ just doesn’t play well in our law courts.”) The NYT’s Randy Kennedy writes that “Judge Batts wrote that for fair-use exceptions to apply, a new work of art must be transformative in the sense that it must ‘in some way comment on, relate to the historical context of, or critically refer back to the original works’ it borrows from.”

That hasn’t always seemed to be a requirement in other fair use cases. In Blanch v. Koons, for example, the Second Circuit noted that Koons used “Blanch’s image as fodder for his commentary on the social and aesthetic consequences of mass media” (rather than, as Judge Batts would seem to require, fodder for his commentary on Blanch’s image). Quoting the Supreme Court’s Campbell decision, the court said the test of transformativeness is whether the later work “adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.”

As I wrote the other day, I think the “key” element in the case is the evidence that Cariou had (and that the court apparently found credible) that he had been directly damaged by the appropriation. Cariou had been negotiating with a Manhattan gallery owner for a show of his Yes Rasta photographs when the Gagosian Gallery began showing Prince’s works that appropriated Cariou’s photographs. As a result, the gallery owner considering a show for Cariou’s works backed off, because “she did not want to exhibit work which had been “done already” at another gallery. Slip op. at 6-7. In other words, Prince’s work essentially was functioning as a direct market substitute for Cariou’s work.

That is a far cry from the situation in Blanch v. Koons, in which the Second Circuit Court of Appeals held that Jeff Koons’ appropriation of a photograph in a collage constituted fair use. There was no reason in Blanch to believe that Koons’ work in any way damaged any market for the appropriated photograph.

Moreover, Cariou’s case does not and cannot conceivably be interpreted to overturn Blanch, in which, as Zaretsky correctly notes, the Second Circuit approved Koons’ use of “‘Blanch’s image as fodder for his commentary on the social and aesthetic consequences of mass media’ (rather than, as Judge Batts would seem to require, fodder for his commentary on Blanch’s image).”

Judge Batts’ apparent belief that in order to be sufficiently transformative to qualify as fair use an artistic appropriation must comment on or otherwise refer back to the appropriated work is certainly open to question even apart from the unquestionable continuing vitality of Blanch. The proposition that an appropriation must comment on the original to constitute fair use originates in commentary on Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569,  (1994), in which the Supreme Court held that 2 Live Crew’s appropriation of Roy Orbison’s Oh, Pretty Woman was a non-infringing fair use. While the Court did stress the ways in which 2 Live Crew’s reworking of the song “parodied” Oh, Pretty Woman, I think it is worth wondering whether one’s principal reaction to 2 Live Crew’s song is that it is making fun of Orbison’s song. More importantly, Justice Souter, writing for the Court, emphasized that the less an appropriating work damages the market for the original work it appropriates, the less it needs to reflect directly back on the original to the degree to constitute a non-infringing fair use:

A parody that more loosely targets an original than the parody presented here may still be sufficiently aimed at an original work to come within our analysis of parody. If a parody whose wide dissemination in the market runs the risk of serving as a substitute for the original or licensed derivatives (see infra, discussing factor four), it is more incumbent on one claiming fair use to establish the extent of transformation and the parody’s critical relationship to the original. By contrast, when there is little or no risk of market substitution, whether because of the large extent of transformation of the earlier work, the new work’s minimal distribution in the market, the small extent to which it borrows from an original, or other factors, taking parodic aim at an original is a less critical factor in the analysis, and looser forms of parody may be found to be fair use, as may satire with lesser justification for the borrowing than would otherwise be required.

Id. at 580, n. 14. And, indeed, this understanding fits perfectly the decision in Blanch, in which it would be absurd to suggest that Jeff Koons was parodying the specific photograph he appropriated rather than using it to comment on the worlds of commercial and fashion photography in general:

Koons is, by his own undisputed description, using Blanch’s image as fodder for his commentary on the social and aesthetic consequences of mass media. His stated objective is thus not to repackage Blanch’s “Silk Sandals,” but to employ it “`in the creation of new information, new aesthetics, new insights and understandings.’” When, as here, the copyrighted work is used as “raw material,” in the furtherance of distinct creative or communicative objectives, the use is transformative.

The test for whether “Niagara’s” use of “Silk Sandals” is “transformative,” then, is whether it “merely supersedes the objects of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.”The test almost perfectly describes Koons’s adaptation of “Silk Sandals”: the use of a fashion photograph created for publication in a glossy American “lifestyles” magazine — with changes of its colors, the background against which it is portrayed, the medium, the size of the objects pictured, the objects details and, crucially, their entirely different purpose and meaning — as part of a massive painting commissioned for exhibition in a German art-gallery space. We therefore conclude that the use in question was transformative.

Blanch v. Koons, at 467 F.3d at 252-53.

I think it is crucial to remain cognizant of the fact that the case law establishes that there can be transformative use of copyrighted work in art other than art that ridicules copyrighted work. I have gone on at great length on this blog about the ways our conventional notions of authorship are too narrow and historically ignorant. But Ray Down is downright eloquent on the ways these issues pertain to art over at his Copyright Litigation Blog in connection, specifically, with Richard Prince. His entire post, with helpful illustrations, is well worth your read. Here’s an excerpt:

Fine art, truly fine art in an art gallery, is a place where a copyrighted work becomes a fetish object, a tribute, a decontextualized thing revealing a new meaning. The urinal of Marcel Duchamp. The Brillo Box of Andy Warhol. Both utilitarian objects made by others and fetishized by the artists.

And look at L.H.O.O.Q. – nothing original in the execution, but the Mona Lisa was in the public domain at the time. Prince is blatantly stealing. Plagiarists take the words of others and try to make you believe that they have crafted them. But Prince’s cutouts from advertising, porn and outlaw biker magazines never misled the consumer.

But somewhere, something bothers me about shutting a highly respected fine artist down completely and burning his works when the first sale doctrine would permit him to buy a copy, modify it and resell it. When the First Amendment lets even repulsive speech be heard and the contemporary art world says it is art, I have a problem with the government burning it.

To me, an original work of fine art properly labeled as such by a new artist is almost pure speech – or in some way pure idea – even if it includes major appropriations. Things change when the artwork is widely reproduced. When the consumers are paying tens of thousands for Prince to take something no one is interested in, put his spin on it, and add value. Prince’s “appropriation” added ten million dollars worth of value to a pile of books. Everyone knew he didn’t create the original.

This is not a question of consumers being defrauded, these are wealthy ultrasophisticates on the cutting edge who are the purchasers – surrounded by the top art advisers and critics -if these people feel that Prince’s value added is that great, what is the harm in letting them indulge, as long as Prince legally purchased the original books? In fact, Prince’s prices will probably soar – scarcity and scandal drive art prices up.

From a semiotic perspective, isn’t Prince simply holding up a mirror to people who may not want to look at themselves or their art as art in the hands of another? And if your message is mirror-like, is it less valid? And if you don’t have the verbal skills to articulate what you are doing, is that any less a mirror?

In short, I think Dowd is right, but I also think the death knell of non-parodic appropriation is being rung without reason. Finally, I think that if Cariou convinced the court that Prince’s appropriations robbed Cariou of real opportunities to sell his photographs, the outcome of Cariou’s case is obviously correct and does not threaten the kind of appropriation case people like Zaretsky, Dowd, and I talk about when we talk about appropriation by the likes of Prince, Koons, and Shepard Fairey.

Cariou v. Prince: the damage to plaintiff is far more important than Richard Prince’s inability to articulate an artistic intent.

I discussed here nearly 2 years ago the lawsuit by photographer Patrick Cariou against Richard Prince alleging that the collages Prince had exhibited at the Gagosian Gallery in 2008 because they had appropriated photographs of Rastafarians Cariou had taken and published in his book Yes Rasta in 2001. I wrote then that the lawsuit “could have a profound impact on the art world, either clarifying that the widespread acceptance in the art world of appropriation art is legally legitimate or opening the door to an increased number of lawsuits by copyright holders against artists engaged in collage, sampling, satire, and any  number of other genres that have become increasingly easy to engage in with the digitalization of media and the rise of the internet.”

The verdict is in: the court ruled in favor of Cariou and against Prince. The decision is embedded below.

On the one hand, the decision is not as far reaching as it might have been. The court emphasized that it was declining to accept Prince’s argument that “appropriation art is per se fair use, regardless of whether or not the new artwork comments on the original works appropriated.” Slip Op. at 17-18. On the other, the court limited the scope of fair use in appropriation art to work that comments on the original works, insisting that, “to the extent that [Prince’s works] merely recast, transform, or adapt the photos, [they] are . . . infringing derivative works.” Id. at 18.

There are a several interesting aspects of the case. First, the court emphasized that Prince “testified that he has doesn’t “really have a message” he attempts to communicate when he making art,” and that “[i]n creating [his] Paintings Prince did not intend to comment on any aspects of the original works or the broader [Rastafarian] culture.”

It may be a dangerous thing to depend on the artist’s intent in judging the transformative nature of his art. 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? Yet, in Blanch v. Koons, 467 F.3d 244, 252-53 (2d Cir. 2007) (emphasis added), the Second Circuit, in holding that Jeff Koons’ appropriation of a copyrighted photograph constituted fair use, based its conclusion that Koons’ use of the photograph was “transformative” precisely on Koons’ statements regarding what he intended:

Koons asserts — and Blanch does not deny — that his purposes in using Blanch’s image are sharply different from Blanch’s goals in creating it. Compare Koons Aff. at P4 (“I want the viewer to think about his/her personal experience with these objects, products, and images and at the same time gain new insight into how these affect our lives.”) with Blanch Dep. at 112-113 (“I wanted to show some sort of erotic sense[;] . . . to get . . . more of a sexuality to the photographs.”). The sharply different objectives that Koons had in using, and Blanch had in creating, “Silk Sandals” confirms the transformative nature of the use. See Bill Graham Archives, 448 F.3d at 609 (finding transformative use when defendant’s purpose in using copyrighted concert poster was “plainly different from the [*253] original purpose for which they were created”); see also 17 U.S.C. § 107(1) (first fair-use factor is the “purpose and character of the use” (emphasis added)).

Koons is, by his own undisputed description, using Blanch’s image as fodder for his commentary on the social and aesthetic consequences of mass media. Castle Rock Entm’t, 150 F.3d at 142 (quoting Leval, supra, 103 Harv. L. Rev, at 1111). When, as here, the copyrighted work is used as “raw material,”Castle Rock Entm’t, 150 F.3d at 142 (internal quotation marks and citation omitted), in the furtherance of distinct creative or communicative objectives, the use is transformative. Id.; see alsoBill Graham Archives, 448 F.3d at 609 (use of concert posters “as historical artifacts” in a biography was transformative); Leibovitz v. Paramount Pictures Corp., 137 F.3d 109, 113 (2d Cir. 1998) (parody of a photograph in a movie poster was transformative when “the ad [was] not merely different; it differ[ed] in a way that may reasonably be perceived as commenting” on the original). His stated objective is thus not to repackage Blanch’s “Silk Sandals,” but to employ it “‘in the creation of new information, new aesthetics, new insights and understandings.’”

The test for whether “Niagara’s” use of “Silk Sandals” is “transformative,” then, is whether it “merely supersedes the objects of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.”Campbell, 510 U.S. at 579 (internal quotation marks and citation omitted, alteration incorporated);Davis, 246 F.3d at 174 (same). The test almost perfectly describes Koons’s adaptation of “Silk Sandals”: the use of a fashion photograph created for publication in a glossy American “lifestyles” magazine — with changes of its colors, the background against which it is portrayed, the medium, the size of the objects pictured, the objects’ details and, crucially, their entirely different purpose and meaning — as part of a massive painting commissioned for exhibition in a German art-gallery space. We therefore conclude that the use in question was transformative.

In short, courts seem to be basing the transformative nature of alleged infringements on the avowed intentions of the artists themselves. Thus, 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, obviously, should have called his work a parody and critique, not a sequel or a “freestanding novel.” It’s odd to think that makes a difference, though. No matter what he said, his work would be the same.

In the same way, it seems odd that Prince’s refusal to articulate an artistic intent and Koons elaborate description of his own intent are the most significant determinants of the legitimacy of their respective artworks.

Of course, there are more obvious was to distinguish Prince’s case from Koons’. Koons’ use of a fashion photograph in his collage quite plainly had no impact on any reasonably foreseeable markets for that fashion photograph. In contrast, Prince’s work quite obviously did have an impact on the commercial value of Cariou’s work. Cariou had been negotiating with a Manhattan gallery owner for a show of his Yes Rasta photographs when the Gagosian Gallery began showing Prince’s works that appropriated Cariou’s photographs. As a result, the gallery owner considering a show for Cariou’s works backed off, because “she did not want to exhibit work which had been “done already” at another gallery. Slip op. at 6-7.

So we need not go so far as to conclude that Cariou’s lawsuit signals the death of appropriation art in all its various guises. Blanch v. Koons alone is proof that is not the case. But if we realize how plainly and directly Prince’s appropriations damaged Cariou’s opportunities to economically benefit from his own work, the outcome (if not all of the reasoning) of this new case is obviously correct.

Cariou v Richard Prince

There’s no such thing as a free sample? That’s ridiculous.

It’s arguments like those set forth in Curtis Smolar’s column, “There’s no such thing as a free sample,” that give the music industry and its advocates a bad name. He’s wrong — or, at the very least, more prescient than I, in concluding that “[t]here’s no such thing as a free sample.” As I’ve written about at length in the past, the music industry’s practice of requiring payment for any sample of recorded music was a self-interested decision by the music companies themselves in the wake of 2 court decisions, the legitimacy of which are subject to serious question, that are not controlling precedent in most of the country.

Smolar begins his column stating, “Just because something is commonplace doesn’t always mean it’s legal.” I would counter that with this: just because the record companies made a decision back in 1991 that they each would pay for permission to use recorded samples of each other’s music doesn’t mean that payment is required.

Smolar also seems to imply that because fair use is used as a defense to copyright claims and can be characterized as an “exception” to the real rule that any use of a copyrighted work constitutes infringement it somehow has little importance. One could just as easily characterize fair use in this way: Under the First Amendment to the Constitution, we can express ourselves any way we want, even in ways that “steal” your own forms of expression, unless there’s a good reason to stop us. In short, copyright is an exception to the foundational right to free expression.

But Smolar isn’t interested in being accurate — he appears interested only in scaring anyone off of unlicensed sampling. He and his ilk haven’t been too successful in that effort. But then why would he be successful in scaring people if he misrepresents the law as egregiously as he does when he states that “[sampling fails to meet each and every one of the four prongs of the" statutory elements courts consider in determining whether the use of copyrighted material constitutes fair use. It's a whole lot more complicated than that. First, of course, the four-part test does not call for an "either-or" determination on each factor. So it's just plain wrong to write "[t]he use must be for non-commercial purposes.” It’s not true either that “[t]he nature of the copyrighted must be in the public interest.” The mere fact someone samples the identifiable part of a song does not make the sampling an infringement either. Finally, Smolar states that sampling damages the market for the song from which the excerpt was taken “because the new song may be purchased for as much as the original.” I’m not sure what that means. He can’t possibly mean that if I get Girl Talk’s “Triple Double” I therefore wouldn’t buy “Steppin’ Out” by Joe Jackson. But all he might otherwise mean is that if Girl Talk’s songs are so good that people are willing to pay a lot of money for them (though they can get them for free), that can’t be right. The more the appropriation is valued in its own right, the more “transformative” it is and, therefore, the more likely it constitutes fair use.

But Smolar isn’t interested in the law. He’ just interested in scaring people into believing they’ll be sued by the record industry if they sample anything.

Addendum: For an good discussion of fair use and its complexities (in a context entirely divorced from music), see “Fair Use Controversy: The Gift That Keeps On Giving.”

The negative impact of the internet on music sales has been greatly exaggerated. I’m shocked, shocked.

From Ernesto at TorrentFreak, an excerpt:

In 2010 the BPI reports that there were 281.7 million units sold, which is an all-time record. Never in the history of recorded music have so many pieces of music been sold, but you wont hear the music industry shouting about that. In fact, the music industry is selling more music year after year and today’s figure is up 27% compared to the 221.6 million copies sold in 2006.

But, instead of praising the increasing consumer demand for music, the industry cuts up the numbers and prefers to focus on the evil enemy called piracy. By doing so they spin their message in a way that makes it appear that piracy is cannibalizing music sales. But is it?

In their press release the BPI points out that album sales overall were down by 7%. Although digital album sales were up 30.6%, physical CDs were down by 12.4%. If we believe the music industry, this drop in sales of physical CDs can be solely attributed to piracy. This is an interesting conclusion, because one would expect that piracy would mostly have an effect on digital sales.

We have a different theory.

Could it be that album sales have been declining over recent years because people now have the ability to buy single tracks? If someone likes three tracks from an album he or she no longer has to buy the full album, something that was unimaginable 10 years ago.

This theory would also fit the sales patterns of the last few years, where album sales are down year after year while the number of individual tracks sold is increasing rapidly. In 2010 the UK music industry sold 161.8 million singles (digital and physical) compared to 66.9 million in 2006. Where does piracy fit in here?

Could it possibly be that piracy is only affecting album sales and not single sales? Would that make sense?

Or could it be that the consumption habits of the average music consumer have changed in the last decade?

Who owns Franz Kafka’s papers?

I’ve written before about my skepticism over allowing the dead to exert control over the living to a sufficient degree that we the living are deprived of cultural riches. And just last week I discussed this point with a student in connection with copyright. She expressed disappointment in Douglas Adams’ posthumously published work and wondered whether it wouldn’t have been better for him if nothing he hadn’t authorized for publication had been published. I explained that I don’t think it affects Douglas Adams, a dead man, one bit whether or not stuff he didn’t want published is published but that it might affect us a great deal. Not being the greatest fan of Adams, I brought up Franz Kafka, who legendarily told his friend Max Brod to burn his papers upon his death. Brod, of course, ignored the request. It seems to me it would’ve been an undeniable tragedy if instead Brod had obeyed his friends wishes.

My real point — and the point that drives a lot of what I write on this blog — is that we confuse things and act to our cultural detriment when we treat intellectual “property” like we treat real property. And that confusion of course extends to the ways we give dead people continued influence over their intellectual and artistic creations. So it seems serendipitous that in this coming Sunday’s New York Times Magazine Elif Bautman has an article about the ongoing legal battle in the Israeli courts over the fate of Franz Kafka’s personal papers.

Bautman asks precisely what I would:

The situation has repeatedly been called Kafkaesque, reflecting, perhaps, the strangeness of the idea that Kafka can be anyone’s private property. Isn’t that what Brod demonstrated, when he disregarded Kafka’s last testament: that Kafka’s works weren’t even Kafka’s private property but, rather, belonged to humanity?

But Eva Hoffe and Ruth Wiesler, the daughters of Max Brod’s secretary and presumed lover, are claiming that Kafka’s paper are their property and that they should be permitted to sell them. They are being opposed by the National Library of Israel, which is claiming a right to the papers under Brod’s will. Brod brought the papers along with him when he emigrated to Palestine after Kafka’s death.

It’s an interesting legal case — there are Brod’s inconsistencies, including words that indicate he meant to convey the papers to public authorities in Israel and actions that might seem to indicate otherwise; the eccentric daughters of Brod’s secretary/lover, the more important of whom in this battle seems to fit the caricature of a batty old cat lady; and, of course, the overarching presence of Kafka himself, over whose legacy this kind of legal battle seems, in retrospect, well . . . almost inevitable.

As one Israeli writer interviewed in the story explains:

If Brod could see what was happening now, . . . he would be horrified.” Kafka, on the other hand, might be O.K. with it: “The next best thing to having your stuff burned, if you’re ambivalent, is giving it to some guy who gives it to some lady who gives it to her daughters who keep it in an apartment full of cats, right?”

Steven Johnson, Lawrence Lessig, & Shepard Fairey at the NY Public Library on Mashup & Remix

When someone tells you they have an “objective” method of judging value, run!

One of the reasons I find disputes concerning the authenticity and provenance of works of art so fascinating is that the art market often magnifies the subjectivity and volatility that all markets are subject to. In practice 20 years ago I often deposed investment bankers at great length on their methods and judgments in valuing companies. I was always amazed at the subjectivity that went into numbers that got translated into hard dollar amounts that investors treated like objective, indisputable measures of value. Now, in a fascinating piece in the New Yorker, David Garan writes about

Canadian forensic art expert named Peter Paul Biro, who, during the past several years, has pioneered a radical new approach to authenticating pictures. He does not merely try to detect the artist’s invisible hand; he scours a painting for the artist’s fingerprints, impressed in the paint or on the canvas. Treating each painting as a crime scene, in which an artist has left behind traces of evidence, Biro has tried to render objective what has historically been subjective. In the process, he has shaken the priesthood of connoisseurship, raising questions about the nature of art, about the commodification of aesthetic beauty, and about the very legitimacy of the art world. Biro’s research seems to confirm what many people have long suspected: that the system of authenticating art works can be arbitrary and, at times, even a fraud.

Of course, as Garan writes, the desire to replace subjective judgment regarding the authenticity of artworks with some “objective” scientific method is longstanding:

The desire to transform the authentication process through science—to supplant a subjective eye with objective tools—was not new. During the late nineteenth century, the Italian art critic Giovanni Morelli, dismissing many traditional connoisseurs as “charlatans,” proposed a new “scientific” method based on “indisputable and practical facts.” Rather than search a painting for its creator’s intangible essence, he argued, connoisseurs should focus on minor details such as fingernails, toes, and earlobes, which an artist tended to render almost unconsciously. “Just as most men, both speakers and writers, make use of habitual modes of expression, favorite words or sayings, that they employ involuntarily, even inappropriately, so too every painter has his own peculiarities that escape him without his being aware,” Morelli wrote. He believed that not only did an Old Master expose his identity with these “material trifles”; forgers and imitators were also less likely to pay sufficient attention to them, and thus betray themselves. Morelli became known as the Sherlock Holmes of the art world.

To many connoisseurs, however, the nature of art was antithetical to cold science. Worse, Morelli made his own share of false attributions, prompting one art historian to dismiss him as a “quack doctor.”

But Garan’s article reveals that Biro may not be all he’s cracked up to be. Neither are objective methods of valuing business.

Viacom’s schizophrenia over YouTube: the industry cries “serial killer!”

Does YouTube threaten the entertainment industry? On the one hand, Viacom and others will scream that it threatens the very livelihood of those who produce our entertainment. On the other, Viacom and others use it effectively to promote their products. And would you really prefer a regime that required YouTube to approve the legitimacy of every video uploaded to it? Frankly, it simply wouldn’t exist if that were required. To me it makes sense that if a copyright holder believes his copyright is being infringed by an online video, he can have it removed upon request. And if the person who uploaded the video believes the request is mistaken, he can ask Google to review it and make its determination at that point whether it will allow it to remain.

Moreover, history teaches that you should view with extreme skepticism the cries of alarm from the entertainment industry. In doing so, you likely would be doing them a favor.

As I wrote the other day in connection with the decision dismissing Viacom’s lawsuit against Google alleging copyright infringement for the posting on YouTube of videos infringing Viacom’s copyrights, As I wrote above, the existing regime makes sense to me and, as I wrote in that recent post,  ”[t]he decision is a straightforward application of the DMCA’s “safe harbor” provision, which insulates service providers from liability for activities by their users that infringe copyrights.” Viacom, of course, disagrees, stating in its press release:

We believe that this ruling by the lower court is fundamentally flawed and contrary to the language of the Digital Millennium Copyright Act, the intent of Congress, and the views of the Supreme Court as expressed in its most recent decisions. We intend to seek to have these issues before the U.S. Court of Appeals for the Second Circuit as soon as possible.

And those who represent the interests of large corporate copyright holders such as Viacom, like the Washington Legal Foundation (whose mission is to “champion free market principles [and] limited and accountable government”) argue that the decision allows Google “to exploit the statute’s safe harbors by designing an entire business model based on improperly profiting from copyrighted content.” Ronald Cass writes in Forbes that the decision is “broad enough to sink the protection copyright holders had enjoyed under the law.” And the Directors Guild of America claims its members’ very livelihoods are at stake:

We fear that the precedent established in this ruling, if not overturned by the appeals court, could result in a drastic rising tide of Internet theft that could decimate our members’ livelihoods, their pension and health plans, and their ability to continue creating the content that is beloved by people all over the world.

Reading these dire warnings you might not realize that as the judge stated in his decision Google took down the offending videos the day after Viacom delivered a mass takedown notice identifying the ones it claimed a copyright in. Nor would you realize that Viacom recognized the value of YouTube to its business by employing people to post its videos to YouTube to promote its productions while at the same time other Viacom employees were adding those same videos to the list for the takedown notice:

For years, Viacom continuously and secretly uploaded its content to YouTube, even while publicly complaining about its presence there. It hired no fewer than 18 different marketing agencies to upload its content to the site. It deliberately “roughed up” the videos to make them look stolen or leaked. It opened YouTube accounts using phony email addresses. It even sent employees to Kinko’s to upload clips from computers that couldn’t be traced to Viacom. And in an effort to promote its own shows, as a matter of company policy Viacom routinely left up clips from shows that had been uploaded to YouTube by ordinary users. Executives as high up as the president of Comedy Central and the head of MTV Networks felt “very strongly” that clips from shows like The Daily Show and The Colbert Report should remain on YouTube.

Viacom’s efforts to disguise its promotional use of YouTube worked so well that even its own employees could not keep track of everything it was posting or leaving up on the site. As a result, on countless occasions Viacom demanded the removal of clips that it had uploaded to YouTube, only to return later to sheepishly ask for their reinstatement. In fact, some of the very clips that Viacom is suing us over were actually uploaded by Viacom itself.

Fear that directors will have their livelihoods decimated and that the decision sinks copyright protection is of course, nothing new for an entertainment industry that can profit enormously from new technologies they demonize, so Viacom’s schizophrenia is, perhaps, progress over Hollywood’s reaction to the VCR, which was 100% self-destructive. In 1982, Jack Valenti, in sworn testimony before Congress , stated “that the VCR is to the American film producer and the American public as the Boston Strangler is to the woman home alone.” But, as Digital America explains, Valenti was not merely crying wolf — he was describing the greatest benefit to the movie industry in the last 40 years as a serial killer:

As the VCR became more important to the consuming public, the Hollywood establishment that fought it bowed to its inevitable benefits. In January 1984, the U.S. Supreme Court concluded 5-4 that VCRs were legal products and that home taping of copyrighted works fell under the “fair use” exception to copyright. While Congress passed the Audio Home Recording Act of 1992 (AHRA), legislative attempts to codify the Betamax decision and fair video recording rights are still pending before Congress. CEA (at that time known as the Consumer Electronics Group of the Electronic Industries Association), in cooperation with the Home Recording Rights Coalition, protected the legality of home recording and promoted the acceptance of the new technology.

Additionally Hollywood studios established home video divisions to reap the profits from a technology it once considered a threat. Blay’s idea sparked a retail revolution as hundreds of mom-and-pop video rental and sales stores popped up in every community in America. In 1987, video rental income reached $5.25 billion for the year, surpassing movie theater ticket sales for the first time. Today, movie studios regularly make more money on a film from home video sales and rentals than from the theatrical box office.