Monday, February 09, 2009

New Must-Read Art Blog

Add to your list of vital commentary on the art world, the new Huffington Post blog authored by Jonathan Melber, co-author of the soon-to-be-released book ART/WORK: Everything You Need to Know (And Do) As You Pursue Your Art Career (written with the ever-charming Heather Darcy Bhandari).

Jonathan's first two posts are both keepers:
  • Mr. President, Tear Down This Painting
  • The AP Has No Case Against Shepard Fairey
As a lawyer, Jonathan's opinion on the AP/Fairey case is worth a read, including this food for thought on the issue:
Fairey didn't harm the commercial value of Garcia's photograph--he vastly increased it. Danziger Projects, a contemporary gallery in New York City, is selling a limited edition of the original picture, signed by Garcia, for $1200 each. (The Museum of Fine Arts in Houston has already bought one for its permanent collection.)

Labels: art blogs, fair use


Blogger kalm james said...

Wow Ed, thanks for this recommendation. God knows that when I’m looking for the most astute and revelatory aesthetical opinions, lawyers are the first people I go to (right after lobbyists). And there’s no place quite like the Huffington Post when it comes to an unbiased and lucid view of the world, they’ll be at the very top of my browser.

2/09/2009 10:25:00 AM  
Blogger Edward_ said...

James Kalm and Peanut Butter and Jelly.

2/09/2009 10:55:00 AM  
Blogger kalm james said...

Sarcasm...we don’t need no stinkin’ sarcasm. The “annotated” version.

2/09/2009 11:37:00 AM  
Blogger joy said...

since we're doing food metaphors, I gotta say the Fairey/AP story sure has all the trimmings -- informative too. It reads like "Everything You Ever Wanted to Know About Fair Use But Were Afraid To Ask." I agree with the writer, it might be great in a way to see this case go to court and add to the Blanch v. Koons decision, but AP will probably back off when the penny finally drops and they realize there's no case here for them.

2/09/2009 11:47:00 AM  
Blogger Mark said...

Got the book on order! I wouldn't wish drawn out court proceedings on anyone, but would like to see this one go through the motions to clarify fair use, especially in this new world order or internet "borrowing".

I never saw a problem with the Fairey use as it seemed so unique and Mr Garcia sees the positive too. Every so often we need an fresh opinion to set things in some kind of order.

2/09/2009 12:16:00 PM  
Blogger joy said...


Shepard Fairey Sues Associated Press Over Obama Poster

2/09/2009 01:29:00 PM  
Blogger Julie Sadler said...

I do look forward to this subject being discussed and brought to the table!!! Already I have read enough opinions to make myself dizzy.
Collage artists, including myself, are on the edge of their seats awaiting yet another fair use explanation from our illustrious court system.

2/09/2009 03:25:00 PM  
Anonymous Anonymous said...

Really Ed?

I hope the president directs his energy toward more important things than interior decoration.

Melber's assertion that the White House should prioritize the accumulation of 21st century art is inane. The American people have little interest in the contemporary art world and its output. It is not Obama's responsibility to provide "a dramatic backdrop for [his] ambitious agenda" nor should he spend one second worrying about it. The solipsistic critics and curators of the art world are to blame for the ever-widening divide between its product and the public. Surely, this is not the president's mistake to fix.

More ridiculous is Melber's statement that it might create a "symbolic stimulus package": art made by the artists he lists is priced so far out of reach of the average American that it would surely create an immediate backlash and posit this president in a pigeonhole of privilege.

2/09/2009 09:15:00 PM  
Blogger George said...

Really Anon?

Guess what? I agree.

Just what this country needs right now is another blogger deflecting attention away from the real issues at hand.

In case no one noticed, the US economy is in deep doo doo, and the art market is reflecting this as well.

The British auction last week was a bust of historic proportions with total sales 20% of what they were last year. (that's 1/5th, ouch)

Oh yes, part of the reason for the UK drop was that they pulled all the top notch works off the block. Why? So no new prices could be established for the high end of the market. Why? Who knows who is sensitive to "mark to the market" collateral valuations that are all of a sudden cut in half.

The republican back stabbing in the last week has been hard to watch and is an indication of how vicious partisan politics still is in this country. I could really care less if Obama has a "video" in the Whitehouse, it's a petty conceit.

Before this recession is over the raw unemployment figures are going to be over 5 million people. The real issue is not about supporting artists, but about maintaining their day jobs along with the jobs of the rest of the working class in this country.

2/09/2009 11:53:00 PM  
Blogger Rob Hitzig said...

This comment has been removed by the author.

2/10/2009 08:26:00 AM  
Anonymous Anonymous said...

For every art law guru that says Shepard Fairey's poster is fair use there are five more who say that it is not. Since you are a gallery owner I would think you would be pro-copyright. If we are not careful we will see the art world in the same mess as the music industry. Why buy a print from a respected gallery when you can buy a similar print of the altered image from a guy on the street outside of the gallery for far less?

With fair use (even under transformation) you almost have to use a known image for it to be considered fair use. The photograph itself was never that widely known. Fair use was never intended to be used as a way to bypass copyright. Because of this artist people are starting to think it is good to infringe.

You own a gallery. Would you like it if someone photographed all of the art you display only to print off altered posters for profit? Answer that. Regardless of how Fairey used the profit he still made a profit from the work. I think most people are supporting him because of the AP involvement and the connection to Obama.

This time it is the Associated Press. In the past he has infringed on artists. So far he has been lucky because most accept it and get a cut of the profit. I can't accept Fairey's fair use claim when I know that he has sent cease and desist letters to artists who have claimed fair use when making a parody of his work. It is a double standard.

Look up Baxter Orr and you will know what I'm talking about.

2/10/2009 08:31:00 AM  
Blogger Edward_ said...

First of all, to paraphrase Mary Poppins: I never look up anything. If you have a case to make, at the very least provide the links yourself.

Since you are a gallery owner I would think you would be pro-copyright.

I am pro-copyright. I think the question at hand is one of fair use.

Whether it's a double standard or not is irrelevant. Was this abstraction of the pose legally used is the question. A court may eventually need to decide, but there's no doubt in my mind he's changed the image enough to claim it as his own. The alternative is to suggest once photographers have snapped Obama's image from every conceivable angle that no painter can ever again render his's silly.

2/10/2009 09:05:00 AM  
Blogger Annie B said...

The clincher for me in deciding whether or not Fairey changed the image enough to get over the fair-use hump was Garcia's own admission in an interview. He said, "I've been on the campaign for twenty something months, so I would see the artwork, I would photograph it, and think what is with this image? But it didn't snap. It never occurred to me it was my picture." If I were sitting on a jury and I heard that the photographer didn't recognize his own photo, I'd have to conclude that Fairey transformed the image into a new piece of art.

2/10/2009 09:39:00 AM  
Blogger joy said...

Anon wrote:
With fair use (even under transformation) you almost have to use a known image for it to be considered fair use. The photograph itself was never that widely known. Fair use was never intended to be used as a way to bypass copyright. Because of this artist people are starting to think it is good to infringe.

Every one of these statements is patently untrue. Methinks Anon is simply another troll.... (yawn!)

2/10/2009 10:40:00 AM  
Blogger zipthwung said...

If the photographer didn;t recognize his own photo, it was because he took so many. Photographers take dozens of photographs.

In the same way, painters can forget paintings. it has happened.

On to the next argument - how much AND WHAT must one change in order for something to become yours?

"there's no doubt in my mind he's changed the image enough to claim it as his own."

I couldn't disagree more. (thought I think the law is bullshit and copyright is more often used like a shillelagh to bludgeon people into silence than to foster the new and innovative).

Can a president (a public figure int he eyes of copyright law) have a signature style? A look - off into the distance? How often does the president look that way - of into the distance. What skill did it take for the photographer to capture that? How come no one else has? Why aren't there other photographs of Obama looking forward into the future?

The tilt of the head - who owns that?

Obama is a public figure, no one owns his image. He's a celebrity. Anyone can take his picture. But I don't think you can sell cereal with it.

But SF is selling his brand with it. But it's not a tangible product - his brand - it's just a graphic design shop. This confuses me. How can SF do this?

If I use SF's style, amd I beholden to him (though I am promoting his style - or am I diluting his brand?)

If I use the composition in a graphic design - but not the style (the graphic design) then I am referencing the photographer. DO I owe SF for calling my attention to the image as as something that could be turned into a graphic image?

Because the real genius of SF is his ability to create strong graphic works. It must have taken many years of learning Photoshop and Illustrator to achieve his level of mastery. he has a huge library of patterns he uses to overlay layers with as well - these must have been hard to invent, much less turn into reusable digital files.

I could break it down even further, to the atomic level, but I think I've made my point in spades.

The Author is pretty dead, dude. Long live capitalism though, hallowed be it's product, but not its process, which is not copyrightable under law.

2/10/2009 11:07:00 AM  
Anonymous Anonymous said...

Here are some quotes from people about the fair use claim. Transformative is not a solid defense.

Bob Clarida, an expert in copyright and intellectual property laws, has stated that, “This would be a tough fair use argument (for Shepard Fairey) to win because the 'transformation' is purely in the look of the work, not the purpose. There's no commentary going on. Also, a large and significant portion of the work is used, and campaign posters are certainly a reasonable and traditional market for licensed uses of photos, so there'd be a strong argument for market harm even if there's been no measurable lost sales by the photographer.”

Michael Madison who teaches Law at the University of Pittsburgh, “Sure, the photo is “transformed” to a sizable extent, which pushes the fair use needle to Fairey’s side. But surely the owner of the copyright could have charged Fairey or the campaign a fee to use the photo. Given the ubiquity of the image, a well-conceived deal might have generated a substantial amount of money. Push that needle back a ways.”

Jane Ginsburg, a law professor at Columbia University, "What makes me uneasy is that it kind of suggests that anybody's photograph is fair game, even if it uses the entire image, and it remains recognizable, and it's not just used in a collage,".

2/10/2009 12:43:00 PM  
Anonymous Anonymous said...

It only increased Garcia's value after the fact. Up until that point the artist said he did not know who the photographer was. He lied.

Garcia originally wanted to talk to Fairey about appropriation because he does not like how photographers are ripped off all of the time. Shepard must have worked his charm and gave Garcia a deal.

If Shepard had done this the right way the copyright owner could have made well over $100,000 by now. I Shepard wins this I'm heading straight to the Chelsea galleries to take pictures and sell my own art.

2/10/2009 12:49:00 PM  
Blogger Edward_ said...

I must say, it's impressive how this issue brings out more than its fair share of bad reasoning among people.

"What makes me uneasy is that it kind of suggests that anybody's photograph is fair game, even if it uses the entire image, and it remains recognizable, and it's not just used in a collage,"

This from an actual lawyer? Someone who should know better than everyone that because this case hasn't actually gone to court that nothing suggests anything but a potential argument to be made? Why this odd "uneasiness" over something yet to be decided?

I[f] Shepard wins this I'm heading straight to the Chelsea galleries to take pictures and sell my own art.

This is so silly it's charming...let me know how that works out for you, sweetie. We'll be rooting from the sidelines.

2/10/2009 01:45:00 PM  
Anonymous Anonymous said...

I think Shepard is making a mistake by requesting a trial by jury. He probably thinks the jury will side with him on Obama hype alone. The jury will be introduced to sides of Shepard they might not have been aware of. It could get very ugly.

2/10/2009 02:05:00 PM  
Blogger zipthwung said...


Case A: I take an idea and make something. Whom and how do I pay for the idea?

Case B: I take a think and make an exact copy of that thing. How do I sell my labor?

Case C: I make a derivative work, clearly based on another work. How should I be billed?

Case D: I have an idea but I share it with everyone, thinking everyone will know it is my idea. Someone takes my idea and claims it is theirs, even though everyone knows it is my idea and then sues me for my idea.

Case E: I have an idea that I share with everyone, that is wdely influential and I make a lot of money because everyone thinks I have the midas touch on account of the idea and its immitators. Still, I make no money off of the idea itself, which is used to raise funds for killing babies in third world countries. DO I have the right to a portion of those funds to counteract the terrible indignities perpetrated indirectly through the dissemination of an image I myself had a cultural hand in bringing about?

Case D: An above average/average graphic designer with run of the mill conceptual skills apropriates an image he could have taken but didn't because he was busy but didn't want to pay for because he was doing it for the love of his craft, but still made money off of.
The graphic designer gets sued based on recognized derivative works clauses in copyright law.

Designer puts on his conceptual artist hat and claims his work is a commentary and not a derivative work as it appears to most people.

People everywhere learn that art is a grea tway to circumvent copyright law.

Everyone becomes an artist.

Very Warholian.

2/10/2009 02:06:00 PM  
Anonymous Anonymous said...

"Whether it's a double standard or not is irrelevant." Ethics can come up in court. Quotes can also. Fairey is going to have a hard time explaining himself to a jury if his own words are used against him. He has dozens of interviews working against him.

2/10/2009 02:12:00 PM  
Anonymous Anonymous said...

Shepard's suit also mentions the Garcia prints that have been sold. I'm sure the AP team will make it clear that Shepard had no intention of revealing the photographers name. They will also point out that the Garcia prints are being sold by a gallery that represents Shepard. It looks like the gallery is doing that just so Shepard's team can say that Garcia has made profit. If Garcia is not the copyright owner that won't matter. Be something if the AP goes after Garcia, the gallery, and Shepard. If that happens and the AP wins Richard Prince and Gagosian are in for rough times.

2/10/2009 02:17:00 PM  
Anonymous Oriane said...

Just going on the quote posted in the comment above, I'm inclined to give Jane Ginsburg the benefit of the doubt and assume she said something like, "if Fairey wins, it would suggest...". These quotes are all taken out of context because we don't see the exact question asked, or the words that came before and after the words quoted.

So Ed, are you saying that lawyers, even ones who are not directly involved with the case, should never venture an opinion when the issue at hand has not yet been decided by the court? And even after it has, there are always appeals and reversals.

I think it would be more accurate to say you disagree with Ms. Ginsburg's opinion or analysis rather than imply that "an actual lawyer" should know better than to venture an opinion. Why the dismissive tone?

2/10/2009 02:18:00 PM  
Blogger zipthwung said...

can I sellthis
as a parody?

I think I can.
Do I owe the photographer?
I don't think so.

2/10/2009 02:22:00 PM  
Blogger Edward_ said...

So Ed, are you saying that lawyers, even ones who are not directly involved with the case, should never venture an opinion when the issue at hand has not yet been decided by the court?

Not at all. I'm saying I'm surprised a lawyer would offer such a subjective quote on something that will be decided very objectively if it gets to the point that it will have the impact she's claiming. In other words, the uneasiness she expressed is confusing to me.

Why the dismissive tone?

Because it strikes me as sensationalistic.

2/10/2009 02:31:00 PM  
Anonymous Oriane said...

What I find confusing is that you start off the post with "As a lawyer, Jonathan's opinion on the AP/Fairey case is worth a read, ", then later, when another lawyer weighs in with her opinion, that you disagree with, you kind of sarcasticly wonder that "an actual lawyer" would venture an opinion. That's where it seems inconsistent.

2/10/2009 02:59:00 PM  
Anonymous Cedric Casp said...

What's ironic is Edward putting a friendly link to a lawyer's blog, and the morning after he takes every photos off his own blog.

I find that as soon as you befriend lawyers you have to
check your every moves. Sigh..

I think the problem here is that the work is on sale, or being "broadcasted". I wonder if you can get sued for replicating any art you like for your own pleasure.

Or what about a work entirely being presented as a replica of another? I know that chinese are allowed to reproduce Van Goghs as long as they mentioned that they are replicas.

What if the artist went and took the exact same photo of the same subject, from the same angle, and mentions that it's a replica of the other? Is it still infringement?

Cedric Casp

2/10/2009 03:15:00 PM  
Blogger Edward_ said...


The distinction for me is that one lawyer offers a well-reasoned, objective argument and the other is presented as offering a hyperbolic, sensationalistic one. The fact that they're both lawyers is beside the point...I'm delineating between their arguments.

2/10/2009 03:31:00 PM  
Blogger Edward_ said...

What's ironic is Edward putting a friendly link to a lawyer's blog, and the morning after he takes every photos off his own blog. lawyers were involved in that decision, Cedric...just one very stubborn dealer and a persistent offering of logic.

2/10/2009 03:33:00 PM  
Blogger Julie Sadler said...

The question that I have is WHY did Ed remove the pics from the blog? And then not allow comments on that post>>?
Cuz I am extremely curious about this and have checked back to this post every 2 hours to see why he did this.
WHY do I care?
Because I do this all the time. And sometimes, when I am illustrating a point, I even do a (heavens!!!) screen shot. My intentions are not in any way linked to copyright theft, and I am sure Ed's aren't either. My blog is entirely ad free and altho I post my own stuff, I mostly use it as a tool to promote the art of collage. So, if I go and post a pic of someones' work, AND list the gallery at which it will be showing (along with a link to the gallery), AND the times of the show, AND the artists website link I am doing Wrong cuz I posted the pic?? Somehow just text seems pretty uninviting for a visual art show. By not putting in sample pix, how would a user even know what the show was about?? Any of these questions won't matter if Ed has a legal reason to believe that posting linked pix is bad. I am dying to hear!

Why this change Ed? Is there something I need to understand better here about my own blogging? Am I at "risk"?
(I apologize if the answer is obvious and I am not just getting it. Sometimes I think living upstate has dulled my senses)

2/10/2009 03:49:00 PM  
Blogger joy said...

Two things worth noting: 1) not all lawyers are well-versed in copyright law, and hence many are woefully out-of-date in their assumptions about fair use in the current court's standard (ie: a LOT has changed since Koons's 1991 "Puppies" case, and the lawyerly quotes offered above by Anon. serve merely to muddy the waters -- but that IS what trolls mean to do); and 2) a majority of lawyers and judges, with a few notable exceptions, are verging on contemporary art-illiteracy. Art school must have passed them by.

Stanford's Fair Use Project (whose main man, Tony Falzone, is representing Fairey) is incidentally the cutting edge and one of the places to go on the web for clarification and up-to-date information. The lawyer on Huff Post that Ed links to is also very clear in his weighing of the issues at stake in terms of fair use (unlike the quotes above).

What I find irritating is the gallerist James Danziger's peculiar attitude about attribution: according to the piece on Artnet, Danziger provoked this whole AP suit by phoning them up to get correct attribution for Fairey's poster in the current Obama show, because it worried him when Fairey's wife referred to one of his source images as a "screen grab" -- jeezus. This seems to reflect the attitude of many "straight" photographers vis-a-vis the web -- or maybe for them I should call it "the tubes." Attribution for source material? Really? No one cares -- NO ONE -- except for the authors of those images who seem to be holding onto an ethos all their own that never existed for anyone else. Their giant collective chip on the shoulder is showing. I find it simply sad. Too bad, too bad.

2/10/2009 03:58:00 PM  
Blogger Edward_ said...

I just saw the contradiction in my claim. I was, in fact, suggesting that the because Ginsburg is a lawyer she should offer a more objective opinion. You're right Oriane...

I became focused on the quality of her argument by the time I started defending my original jab at her.

My sense that her comment is sensationalistic, and far less valuable than Melber's in the context of this debate, stands though.

2/10/2009 04:12:00 PM  
Blogger joy said...

Ginzburg's worry strikes me as a little bit absurd: everyone's photo IS fair game -- when the use is fair.

2/10/2009 04:21:00 PM  
Blogger George said...

Joy rules!

2/10/2009 11:23:00 PM  
Anonymous Anonymous said...

Deciding if it is fair use is the ticket. Ginsberg was talking about how people automatically assume that Shepard's use is fair use. You have to admit that a lot of people are going along with him because of who he is and what he accomplished for Obama. That was her point I think.

There is a big push to include morals in fair use as with VARA. I agree with that to a point. I don't think it was right for John Lennon's Imagine to be used in a recent film because his widow and two sons did not think he would have agreed with it. The same guy who won that case for the film is representing Shepard in court.

The Fair Use Project has a short history but that history has stepped on a lot of toes. I'm shocked that they are defending Shepard because Shepard has been against people who have claimed fair use with his art. I don't think that reflects well on the Fair Use Project.

2/13/2009 07:24:00 PM  

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