Fordham Law


6 Points Worth Pondering From Last Night's Appropriation Art Smack-Down at New York Law School

Britton Payne in Blouin ArtInfo, April 10, 2012

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Three hours into last night's New York Law School double panel on appropriation art in the digital age, Sergio Sarmiento, an artist and lawyer who serves as the associate director for Volunteer Lawyers for the Arts in New York City, said the one thing that no one else had thought to bring up after endless circling through the pros and cons of current copyright law: Why do we care so much?

Sarmiento's contrarian position (and short-winded speech) was a breath of fresh air in the windowless room. For some reason, the question of copyright, while an arguably minor part of the U.S. legal system, gets people excited. This is perhaps because copyright exposes a tension between some of this country's most prized values — it pits personal liberty against private property within the context of the one thing that Americans care about most deeply, our entertainment (or, in the art world more specifically, our livelihood). The nexus of the three was enough to get people yelling around 7pm in a drab corner of Tribeca.

The "Right to Remix: Appropriation Art in the Digital Age" was actually two different panels — the first discussed more broadly the ways in which artists come up against copyright law, and the second mostly focused on the disputed Prince v. Cariou appropriation art case currently winding its way through the courts. To be somewhat reductive about it, they both tackled the tension between the right to freedom (to share) vs. the right to property (to control sharing). But at the end of the day, what we learned is that the one thing that is really important to both sides is money. What follows are the key points that I took away from the presentation:

1) THE 21ST CENTURY IS A REMIX CULTURE

In the first panel, there were good arguments to be had on either side. On the one hand, Paul Miller (aka DJ Spooky) pointed out that we live in a remix culture, and copyright law is still working on a 19th- and 20th-century (that is to say, analog) model, which doesn't work for the digital age. "Remix is about found memories," he said. We share things to splice old memories together to make new ones, and artists should have the freedom to do that as long as they are making something new. However, Miller also admitted that he runs his finished work past his lawyer, and has never been sued.

2) THE FOUNDING FATHERS WERE NOT PRINCE FANS

On the other side, intellectual property lawyer Britton Payne, who is an associate at Foley & Lardner LLP and an adjunct professor of IP law at Fordham Law, pointed out to me after the panel that copyright, at its heart, is a reflection of the American obsession with property and is written into the Constitution (Article I, Section 8). It has existed since at least 1789 — though its roots go further back than that, and it's not a portion of U.S. law that is just going to fade away. Americans profess to love freedom, but we really love property.

3) MONEY — WITHOUT IT THERE'S NO PROBLEM

Of course, if you are going to post some random copyrighted image of your favorite band on your personal blog that only your aunt and your grandmother read, the record company that owns the image is probably not going to come after you. Copyright claims are generally confined to those places where wealth is concentrated — on both sides. You (probably) won't get sued unless you are making money off of your creation, and you are unlikely to sue unless you can afford a lawyer. "The way you stop people from doing things is by having money," said Payne.

4) WHEN IS APPROPRIATION UNFAIR USE?

That, it turns out, was the perfect segue into the second panel, which discussed more specifically the Prince v. Cariou copyright case. Appropriation artist Richard Prince was sued by photographer Patrick Cariou after the former took images from the latter without permission for the now infamous "Canal Zone" series of works shown at Gagosian Gallery in New York. After a judge found in favor of Prince, Cariou appealed and got the ruling overturned on the basis that Prince's use of Cariou's copyrighted works was not considered "fair use."

Daniel Brooks, Cariou's lawyer, was present last night to make his case, albeit one that was unpopular with the three panelists who followed him. He noted that there is "no reason that art galleries shouldn't be held to the same standard as book publishers" in making sure that a work is vetted for copyright infringement before being displayed, and also added that there is insurance available to guard against these sorts of things. In the end, he insinuated that photographers would be put onto a lower rung in an art world "caste system" if they could not sue to protect their work from being appropriated.

5) SHOULD MORE SUCCESS MEAN LESS FREEDOM?

When it comes to artists, people are used to cheering for the underdog. Former Whitney Museum director and current art practice department chair at the School of Visual Arts pointed out that Prince "is being treated unfairly because he is successful." Indeed, many of the arguments that Brooks made hinged on the fact that Gagosian has the money to do things like hire lawyers to vet appropriation artwork, and buy insurance against possible copyright lawsuits.

But Gago is a particular case and is not representative of the art world — or even Chelsea — as a whole. Most galleries do not have the funds to fight off lawsuits while putting on another appropriation art show in the Hamptons, as Gagosian did last summer. Other galleries, instead, will shun appropriation art, to the dismay of the art world (called a "chilling effect"). It's the future precedent that the art professionals on the panel seemed worried about, not the particular facts of this case (they are, unfortunately, on the opposite side of the law on that one).

6) WHAT IS VS. WHAT SHOULD BE

The last word — before an extraordinarily bungled attempt to distinguish appropriation art from plagiarism that I don't care to expound upon — came once again from Sarmiento. He took a step back, as one of the three people on the panel who serves as a teacher of artists in some capacity or another, and asked the question — whether or not we believe the current copyright law is wrong, "when you are teaching artists, what are your ethical obligations?" Shouldn't you teach them what the law is and how to follow it, rather than what you would like it to be?

After the panel was over, I ran into Karen Sandler, the executive director of the free software organization known as the GNOME Foundation. She expressed disappointment that so many people on the panels advocated appropriation, sharing, and free culture while taking us through presentations on their DRM-equipped Apple products that generally prohibit sharing. But digital rights/restrictions management and the art world is a different conversation for a different day.