Appropriation Art, Labor, and the Law:
From an Aesthetics of Administration to an Administration of Aesthetics
The Rhetorical Practices of Art and Law, Conference for The Association for the Study of Law, Culture and the Humanities, Georgetown Law School, Washington DC (2018)
"But basing legal defenses on emerging or current social or cultural practices can be tricky, which may explain why memoranda of law in support of appropriation art often appeal to history —to legal precedent yes (it’s very important), but also to the history of artistic avant-gardism. To read a Prince defense brief is to read a who’s who of appropriation art history: Duchamp, Picasso, Warhol, Levine, and Koons have all been invoked in order to historicize and thus legitimize the offending work. One has to wonder, however, if in this case, a slightly different art history might be more appropriate. What if we were to summon the artistic tendencies active just prior to the emergence of postmodern appropriation art in the 1980s, that is, to Conceptual Art of the 1960s and 70s?"
Modern Appropriation Art, Postmodern Copyright Law in Cariou v. Prince
in Daniel McClean, ed., Timelines: Artistic Authorship and Legacy (Ridinghouse, 2018)
"Yet the assumption in Judge Batts’s reasoning—that works of art don’t carry meanings when their makers don’t intend them to (or, conversely, that they carry the meanings their makers intend for them to have)—is problematic, if perhaps understandable, given that artistic intention would be one of the few measures available to a judge otherwise reluctant to employ her own subjective readings of art. At least since U.S. Supreme Court Justice Oliver Wendell Holmes proclaimed in 1903 that 'it would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations,' courts have attempted, however imperfectly, to separate legal from aesthetic judgements. However, can determining whether or not a work is sufficiently transformative be accomplished solely through interrogating artistic intention? Aren’t the ways in which art is received and interpreted of great, if not equal, importance? This is exactly the line of questioning Prince introduced when he appealed the District Court’s decision."
Ducks in a Row
in catalog for the exhibition El Pato Pascuál, MAK Center for Art and Architecture, Los Angeles (2018)
"It is within this historical context that one grasps the juggernaut that is The Walt Disney Company, the top-down media institution par excellence. To this day, Disney is both treasured for providing the stuff of dreams for children around the globe, and derided as a corporate behemoth that foists its version of wholesome values onto viewers regarded mostly as impressionable consumers. Indeed, as one of the largest media conglomerates in the world and familiar to anyone who has watched film or television over the past seventy-five years, Disney is almost too easy as an object of criticism. As this exhibition demonstrates, the impact Disney has made on its audiences in the United States and beyond is unmistakable. Yet it is also the law that has helped Disney maintain its hegemonic position within the sphere of culture."
in Navas, Gallagher, and burrough, eds., Keywords in Remix Studies (Routledge, 2017)
"One of the challenges in any discussion about intellectual property is that it necessarily remains abstract. This abstraction arises from the fact that intellectual property is everywhere, and yet nowhere, at the same time. It shapes modern life in dramatic ways but is so ubiquitous and naturalized as to be almost invisible. Much like the Chinese proverb in which fish cannot recognize the water that surrounds them, we have difficulty seeing and therefore describing adequately that which is all around us. And it is all around us: anyone who has sampled recordings in the creation of a new remix, or downloaded electronic books from Amazon, or clicked “I Agree” after scrolling through a lengthy software licensing agreement, or, for that matter, purchased a car with an onboard computer control system, or taken prescription medication, or even sipped a can of Coke, has interacted with intellectual property. In the following paragraphs, I’ll lay out the history of intellectual property as a principle, and as a term. I’ll then show how approaches to intellectual property have shifted over the last several decades, through examples drawn from culture practices as well as court rulings. These examples foreground critical issues surrounding authorship, intellectual labor, (now global) economies, and the creative freedom to remix."
in Navas, Gallagher, and burrough, eds., Keywords in Remix Studies (Routledge, 2017)
"To mash also gives music a political dimension. Just as the term was used as a call to build up, so too it could be a signal to tear down, or wipe away. Both the up and down variations retain a positive and cathartic element—both express a process of
purification. More specifically, following the Jamaican Rastafari movement and its criticism of imposed Western values (crass materialism, colonialism, racial injustice), to mash down is to destroy, to purge, to resist. In the 1978 track “Mash Down,” the Roots tell listeners: “We’re going to mash down principalities and wickedness,” in reference to doing away with the corrupt Babylon culture foisted onto otherwise peaceful and natural people."
Response to A Knight's Heritage:
Three Episodes in the Work of Karl Haendel
Art Journal Open (2016)
"In contextualizing Haendel’s re-creation of Truitt’s work, Harren addresses the problematic of a contemporary white male artist appropriating the work of an under- acknowledged female Minimalist sculptor. Yet I propose to extend this “white male privilege” to a general “artist’s privilege.” That is, it is difficult not to conceive the artist as a discourse-savvy, sovereign agent, and the artwork, therefore, as the privileged object of contemporary cultural expression. This condition becomes apparent as appropriation artists come into tension with copyright law as well as other authorial modes, which I will expand on in the following sections."
What is Transformative?
The Enemy, Vol. II No. II (2015)
"As much as I wholeheartedly agree with Adler that the transformative test in fair use is less than perfect and deserves scrutinization, it’s difficult to embrace her proposal for the simple reason that her characterization of contemporary art is flawed. Adler states: 'To the extent courts search for artistic intent to evaluate "meaning" and "message" in fair use, they are searching for a measure of meaning that has been rejected as meaningless in contemporary art.' As both an artist and teacher of art, I find this claim to be too reductive. It might speak to a stereotype of a certain strain of postmodernism, but it cannot possibly account for the mass of copy-reliant practices today. To Adler’s credit, there is some truth to her generalization that 'the goal of current art is to throw the idea of stable meaning into play,' but the logic that art therefore floats in a state of suspended relativism, or meaninglessness, or that artists are consequently absolved from taking responsibility for their appropriations, does not follow. There are all sorts of artists today who appropriate with the clear intention of providing new ways to rethink established meanings. Candice Breitz, Penelope Umbrico and Paul Pfeiffer are just a few examples of artists who appropriate in order to engage in a de-stabilizing, but then re-stabilizing, meta-process of critical reflection (that is de-stabilized yet again with future art works). 'Meaning' in these artists’ works isn’t dissolved so much as augmented. Ironically, by offering the example of artist Sherrie Levine as evidence of the loss of stable meaning in contemporary art, Adler repeats the thoroughly established—which is to say stabilized and meaningful—discourse of Pictures Generation practices. Ultimately, we should be skeptical of solutions to the limitations of the transformative that seek to attenuate the articulation of intent and meaning, thereby de-intellectualizing art and leaving its legal viability to the whims of market forces."
How to Sue Richard Prince and Win
American Suburb X (2015)
"The longer answer to our question: it depends on who the reasonable viewer is. Just as the Cariou v. Prince circuit judges measured transformative-ness mostly by assessing formal characteristics, so too might the average joe base an opinion on how the works look compared to the originals. But if the reasonable viewer were an art critic, or scholar, or in some way connected to or familiar with recent art history, then perhaps more than just formalist analysis would come into play. Issues around context, and artistic intent, might resurface. Oh but the works are obviously transformative—they’re hanging in an art gallery, the artist meant for them to be understood differently—they’re transformative because they’re art! But why are they art? Because they’re transformative! Such circular reasoning is a symptom of a vexed art world that has continually struggled with its relationship to mass culture. On the one hand, contemporary art constantly seeks to break outside of itself, to be meaningful beyond the discourses and institutions of art, to, as the cliché of avant-gardism goes, 'bridge the gap between art and life.' On the other hand, artists and their supporters scurry back to the safety of an autonomous field of art when it suits their interests. Look at Richard Prince! Blurring the lines between art and social media—brilliant! What’s that? He might have infringed some copyrights? That’s impossible—Prince is an artist! What he makes is art!"
Reflections on the Amen Break:
A Continued History, an Unsettled Ethics
in Navas, Gallagher, and burrough, eds., The Routledge Companion to Remix Studies (Routledge, 2014)
"At their most elemental, what both plagiarism and copyright infringement share is the common act of copying. Over the next several pages, my intention is to identify the slippages that occur between ethical and legal categorization in the cultural life of intellectual property. As a case study, I will use the Amen Break, a six second drum beat that continues to be copied, involving instances of copyright infringement, and perhaps even a little plagiarism. Indeed, as copying, especially using digital tools, has become such a naturalized aspect of communication, it is not always clear when boundaries are probed, let alone transgressed. I hope that my story-within-a story inspires the reader to examine his or her own participation in the (re)production of culture through the everyday act of copying. "
Review: Copyfraud and Other Abuses of Intellectual Property Law, by Jason Mazzone
Visual Resources: An International Journal of Documentation, Volume I, Issue 30 (2014)
"Control critics have also reinforced a dominant narrative, even as they have sought to problematize it: that is, the epic battle between unmitigated information suppression and liberation. Certain very valid concerns notwithstanding, theirs has been a predominantly 'the sky is falling' determination, antagonistic to apparent monolithic private interests that are locking everything down for good. Jason Mazzone's Copyfraud and Other Abuses of Intellectual Property Law is therefore a welcome volume insofar as it eschews the conventional control critic diagnosis in favor of an examination of the normative behavior surrounding what Mazzone considers to be the 'overreach' of intellectual property (IP) rights. For Mazzone, a legal scholar and advocate for both strong IP rights and a robust public domain, the 'defect of intellectual property law is not...that intellectual property rights are too easily obtained, too broad in scope, and too long in duration.' Rather, it is the overzealous and sometimes flatly erroneous assertions of legal protections by content providers—and their allowance by content users—that has created a perception gap between what the law allows and actual practice, causing disequilibrium between private rights and public interests. Throughout its chapters, Copyfraud and Other Abuses of Intellectual Property Law documents what Mazzone claims is a widespread but less understood problem and, importantly, prescribes practical solutions that might help restore a symbiotic relationship protecting private rights and public interests."
Immanence of Intervention, Revival of Critique
Untitled Magazine, Pacific Northwest College of Art (2013)
"The mythic status of the Duchampian narrative is matched only by the utopian thrust of much twentieth-century artistic intervention. In the last 100 years, scores of artists have montaged, appropriated, and remixed existing materials as commentary on the standardizing and de-authenticating effects of industrial development, and the increasing commodification of daily life. If a critique of cultural production under a capitalist configuration is latent in Duchamp's interventions, it comprises the kernel of the Situationists' subversion of spectacular society or, more contemporaneously, the Billboard Liberation Front's commandeering of outdoor advertising. Thus, to inquire as to the state of artistic intervention necessarily demands interrogating the legacy of artistic critique of various stages of capitalist development. Stated otherwise, Marion von Osten asks, 'Aren't artists' historical and current forms of self-organization, and interventions into the art system's historical division of labor, signs of a détournement within the actual distribution of wealth and value, whether monetary, cultural, or symbolic?'"
In Fair Use, Freedom Does Not Equal Progress
Antenna, blog for the Media and Cultural Studies area, Dept. of Communications, University of Wisconsin - Madison (2013)
"Last year I wrote an essay for the book Media Authorship in which I traced the issues surrounding copyright's fair use doctrine in the context of contemporary appropriation art. Specifically, I compared two of art's most notorious copyright infringement lawsuits, Rogers v. Koons (1992) and Cariou v. Prince (2013). Artist Richard Prince's appeal in the latter case was still pending by the time my words went to press; on April 25 of this year, the Second Circuit Court of Appeals overturned the lower court opinion. It found that, for the most part, Prince's appropriations of photographer Patrick Cariou's pictures constituted fair use. Many in the art world saw the ruling as a decisive victory for appropriation artâ€”a type of practice seemingly doomed to perpetually teeter on the precipice of illegality..."
Appropriation Art, Subjectivism, Crisis:
The Battle for Fair Uses
Chris and Gerstner, eds., Media Authorship (Routledge, 2012)
"United States District Court Judge Deborah Batts's March 2011 ruling that artist Richard Prince had infringed photographer Patrick Cariou's copyrights threw the art world into a frenzy. Rigorous debate over Prince's appropriation of Cariou's images for a series of paintings titled Canal Zone had been mounting since Cariou filed his claim at the end of 2008, but it was Judge Batts's decision that really prompted the punditry. Critics, curators, gallerists, artists and other commentators, writing in print publications, press reports and the blogosphere all—for the most part—decried the verdict, claiming that it would have a 'chilling effect' on appropriation-based practices, which would likewise stifle creativity and free expression in the long-term. And with serious concern over Cariou's suit also naming Prince's exhibition organizer, Gagosian Gallery, as an accomplice, no fewer than ten distinguished museums and arts foundations, as well as—indeed—Google, filed briefs in support of Prince's appeal, which is, as of this writing, pending..."
The Yes Men:
Parody in Aesthetics and Protest
MATERIAL Issue 3 (2012)
"Appropriation as a critical and politically resonant practice has enjoyed something of a revival over the last decade. Much of this recent work has been categorized as 'tactical media,' a movement of mostly electronic art and activism that developed out of anti-globalization sentiment in the mid-1990s. The Yes Men have been regarded as among the most prolific of these media tacticians. I will be discussing their recent legal battle with the United States Chamber of Commerce, which erupted in 2009 when the Yes Men appropriated the Chamber's intellectual property. My analysis will operate from theoretical articulations spanning different disciplines: capitalist critique via scholars Luc Boltanksi and Eve Chiapello; the notion of 'tactic' as espoused by theorist Michel de Certeau; the legal doctrine of 'fair use', and scholar Linda Hutcheon's articulation of postmodern parody. Let me begin here by quoting artist and scholar Lucy Soutter. Recently she writes..."
The Pictures Generation, the Copyright Act of 1976, and the Reassertion of Authorship in Postmodernity
Art & Education (2012)
"In the three decades since artists Sherrie Levine and Richard Prince first exhibited their provocatively infringing appropriated photographs, inexpensive reproduction technologies and distribution systems have further thrown established conventions of authorial control into disarray, and at a seemingly exponential rate. Reactionary focus, then, to both the legal regulation of image production and the prosecution of violators has been rigorous. 'Intellectual property' now figures significantly as a cross-over category between legal and cultural discourse. Within the domain of art, appropriation since the Pictures generation might have been determined by artists to be a very risky endeavor. But while there has been the occasional lawsuit, there is nonetheless no doubt that the practice of appropriation in contemporary art is alive and well. There is a lot of copying going on, with, as scholar Martha Buskirk describes, 'The types of copies that appear in contemporary art...as varied as the materials artists have employed...'"
A Political Economy of the Digitally Empowered Subject
The Sound of Downloading Makes Me Want to Upload (Paris: Institute of Social Hypocrisy, 2010)
"Notwithstanding the 'digital divide' barrier to entry into the networked society, well along now in its '2.0' phase, the author, it seems, has become the producer. Today's digital subject has now folded 'reading' (downloading) and 'writing' (producing/uploading) into one another, altering our preconceptions of the creative act, which has in turn altered the very definition of what it means to be a creator. And while Roland Barthes' proclamation of the 'death of the author' four decades ago may be somewhat misguided, as I intend to argue, it cannot be denied that there has been, on an unprecedented scale, a 'birth of the reader,' which has consequently shifted the sites of cultural agency in contemporary society..."