In 2006, the Danish tabloid Ekstra Bladet investigated the links between the Icelandic bank Kaupthing and tax havens. Kaupthing’s managers did not like what they read, but failed to persuade the Danish press council that the paper had done anything wrong. The bank sued for libel in London instead. The newspaper pulled the articles and apologised because English lawyers ran up costs that were beyond its editor’s worst nightmares – £1 million, and that was before a case had gone to court.

Kaupthing went for the paper in England not just because it wanted to kill the original story, but because it also wanted to deter others from spreading the idea that Iceland was not a safe place for investors. The English legal profession obliged. Newspapers’ lawyers thought once, twice, one hundred times before authorising critical stories. A few months later Kaupthing collapsed – along with the other entrepreneurial, go-ahead Icelandic banks – and British depositors lost £3.5 billion. By allowing libel tourists to fly to London and use our repressive laws, the English legal profession had also stopped the British investors from learning of the danger in investing in the country’s banks.

You no more hear writers and broadcasters admit that they are frightened of investigating investment banks than you hear them admit that they are frightened of challenging the founding myths of Islam. We cannot puncture our own myth that we are fearless seekers after truth, even though, if we honestly owned up to our limitations, we might force society to confront the fact that modern censorship does not conform to old models. It is a mistake to think of repression as repression by the state alone. In much of the world it still is, but in Britain, America and most of continental Europe the age of globalisation has done its work, and it is privatised rather than state forces that threaten freedom of speech.

This passion for freedom of expression is part of what drives my passion on behalf of appropriation artists and against Patrick Cariou in his copyright infringement case against Richard Prince. One of Cariou’s purported motivations in bringing the lawsuit was to vindicate the offense taken by the Rastafari (the subjects of Cariou’s photographs that were appropriated by Prince) at Prince’s images. As the Caribbean Rastafari Organization put it in its “Statement of Protest and Demand for Cancellation” of Prince’s exhibit:

[Prince's exhibit] is egregiously disrespectful of Rastafari culture and peoples, and reflects racial stereotyping that is morally offensive and that has no place in the 21st century. So-called artistic license cannot permit the trivialization and abuse of a people still marginalized by race and gender to evoke images of subordination and exploitation of Africans and women. This is a legacy of the European colonial enterprise that continues to have a negative impact on African peoples in the Americas and it is a legacy that the Rastafari have resisted and condemned for nearly 80 years. Rastafari at the vanguard of Pan-African Liberation ceaselessly demanding justice based on truth and right, find the Canal Zone exhibit distasteful, insensitive, insulting and totally unacceptable.

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.

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.

* * *

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.