This article is by Brian Sherwin, Regular contributing writer for FineArtViews. Brian Sherwin is an art critic, blogger, curator, artist and writer based near Chicago, Illinois. He has been published in Hi Fructose Magazine, Illinois Times, and other publications, and linked to by publications such as The Boston Globe, Juxtapoz Magazine, Deutsche Bank ArtMag, ARTLURKER, Myartspace, Blabbermouth, Milwaukee Journal Sentinel, Modern Art Obsession, Citizen LA, Shark Forum, Two Coats of Paint and Art Fag City. You should submit an article and share your views as a guest author by clicking here.
Why do I suggest that the 'battle' over how 'fair use' is interpreted is NOT about 'creative freedom'? Simple. The issue is an issue due to profit -- and as mentioned earlier, conflicting markets for art. Copyright infringement normally does not become a viable reason for a lawsuit unless profit is involved. In other words, if the copyright offending appropriation artist had exhibited the alleged infringing artwork without prices there would likely not be an issue. Copyright does not necessarily destroy 'creative freedom' depending on how you view it -- it just keeps people from profiting off of the work of others. Point blank -- I feel that some appropriation artists use 'creative freedom' as an attempt to smoke screen the topic of money.
I have supported copyright strongly for nearly eight years now -- and have long warned about what may happen if a wide interpretation of the concept of 'fair use' were to become a legal standard. Corporations would benefit from a wide interpretation of 'fair use' just as much as appropriation artists -- which means we would likely see corporations hijacking the career of any artist creating marketable artwork. The artists would not be able to compete -- it is as simple as that. Market-wise ALL artists would suffer from the lack of copyright protection in that scenario.
We all know that this 'battle' is not over 'creative freedom' -- it is about money. I challenge famous appropriation artists -- such as Shepard Fairey -- to stop romanticizing it as anything else. The M word is an important part of this ongoing debate -- stop denying it (you certainly don't deny it when you check your bank statements). So many questions go unanswered from the upper levels of the appropriation art community... such as, why is it so difficult for some of these artists to simply reach out and collaborate with the creators of the images they desire to use? I can hear the crickets now.
In addition to the above question -- why appropriate an image that you view as inferior? I ask that because at court appropriation artists tend to suggest that the infringed image is "not meaningful", has "little value" or was not "needed" overall within the context of their artwork. For example, Shepard Fairey suggested that his poster of Obama could stand on its own without the assistance of the image he used. Appropriation artists ranging from Joy Garnett to Richard Prince have made similar claims when faced with allegations of copyright infringement -- suddenly the appropriated image is not so "important" to the overall piece. De-Appropriation artists have a different take on that. Point blank -- when faced with copyright infringement some appropriation artists downplay the importance of the image they appropriated. Which leads to another question -- if these artists really feel that way why do they appropriate from others in the first place? If you look past the rhetoric it all goes back to the M word -- it is about an unwillingness to collaborate or compensate.
I have a few more questions for the upper levels of the appropriation art community -- why have some of you had your legal teams send out cease-and-desist letters when others appropriate from your images? Does a wide interpretation of 'fair use' only apply to you? Does 'creative freedom' -- as you define it -- only apply to your studio practice? There are so many contradictions. Again, it goes back to the M word -- MONEY... and yet some of these same artists wave the banner of 'creative freedom' when a copyright owner challenges their use of a protected image (which often involves making the copyright owner out to be an opportunist... an appropriation artist calling a copyright owner an "opportunist". Interesting). Sadly, creative freedom has been reduced to a mere smoke screen on this 'battlefield'.
In closing, I've been called "crazy" -- among other things -- for having such extreme support for copyright. I stand by my views -- it is not 'crazy' to think that artists, ALL artists, should have the ability to protect their art market if needed. Thus, I for one hope that copyright wins the battle when everything is said and done -- ALL artists must be able to effectively protect the market for their art... strong copyright offers said protection. The alternatives are not acceptable in my opinion -- weak copyright would allow any wealthy individual or corporation to hijack art that is found to be marketable. Anything marketable would be fair game if a wide interpretation of 'fair use' becomes a legal standard. It would kill the ability an artist has to support himself or herself with art... and thus kill creative output for the majority of artists. More artists are making money from their art today than ever before -- that momentum will be lost if copyright protection is lost. Even the commercially-minded appropriation artists would suffer if you think about it. Indeed -- it is about the money.
Take care, Stay true,