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When art is outlawed, only criminals will have brushes
October 25, 2006 7:51 AM   Subscribe

Illegal Art: Should artists be allowed to use copyrighted materials? Where do the First Amendment and "intellectual property" law collide? What is art's future if the current laws are allowed to stand? Questions asked by Stay Free! in their ongoing multimedia exhibit.
posted by dejah420 (25 comments total) 2 users marked this as a favorite

 
It's unfortunate, but years of advertising indoctrination prohibit me from hearing/seeing the words stay free without immediately thinking maxi pads.
posted by flapjax at midnite at 7:59 AM on October 25, 2006


I would love to see that exhibit. I hope it comes to new york.
posted by teishu at 8:02 AM on October 25, 2006


I have asked myself this question and never found a satisfactory answer. For a few years I have been making digital collage art from various sources - often well known paintings, downloaded from a variety of sites plus photos some of my own plus some others, along iwth bits of print ads and othered copied text. I have only exhibited these in a very limited sphere and since no question has ever come up I just go ahead and keep producing them. But this material re-raises my questions. So I wonder what a lawyer might think.
posted by donfactor at 8:04 AM on October 25, 2006 [1 favorite]


Ha! What flapjax said. I have enjoyed the print version of Stay Free for years, but can't not think of sanitary napkins.
posted by everichon at 8:04 AM on October 25, 2006


Also, Todd Hayne's "Superstar" is awesome-- the manager of the theater I toiled in as a youngun scored a print somehow, and we all watched it after closing. The download seems 404'd, though. Anyone got an alternative link?
posted by everichon at 8:07 AM on October 25, 2006


Ugh. Yes, you can use copyrighted works to make a work of art. It's pretty much black letter fair use law.

You can buy a thousand copies of a copyrighted photograph, poop on them, and sell your one thousand pooped photos. You already compensated the owner, because you bought the work, and now you are modifying it (but they already got paid).

The Grey Album is very very very different. He (in theory) bought one copy of the white album, mixed it with one copy of the black album, and then distributed millions of copies of the mashup. Do you see the difference? Fair use lets him remix in his house to his heart's content (educational fair use). It does not allow him to remix the works of others and the distribute it to make a name for himself.

That Illegal Art DVD-R seems to be parodies of the copyrighted work (I've never seen to it, so I don't know, just guessing). Parody is a Supreme Court recognized first amendment exception to copyright.
posted by Pastabagel at 8:15 AM on October 25, 2006


Actually PastaBagel, there is no federal copyright protection for sound recordings made before 1972. Because the White Album was released in 1968, it appears that EMI has no federal copyright rights in the sound recording. Some record labels have argued that "digital remastering" creates a new work, protected under federal copyright laws. There don't appear to be any cases supporting this view, however, where a simple transfer to CD is involved. Sony also backed down after they realized they couldn't win a Fair Use argument. Thus, Grey Album is quite legal.

As to your exasperated "well of course you can use copyright work in your art", I would suggest to you that if it were so cut and dried simple, that there wouldn't be all these cases against artists like Tom Forsythe and his Barbie Food Chain.
posted by dejah420 at 8:29 AM on October 25, 2006


Stay Free! is an awesome magazine. A thinking person's Adbusters.
posted by dobbs at 9:37 AM on October 25, 2006



As to sound recordings, it's more complicated than that. From your link:
Sound recordings fixed before February 15, 1972, were generally protected by common law or in some cases by statutes enacted in certain states but were not protected by federal copyright law...Any rights or remedies under state law for sound recordings fixed before February 15, 1972, are not annulled or limited by the 1976 Copyright Act until February 15, 2047.

They are protected. In any case a remaster is not a simple CD transfer. And as far as I can tell, EMI has C&D'ed everyone selling the Grey Album, so it looks like the Grey Album infringes their copyrights.

About Forsythe, he was sued for trademark and copyright infringement for selling photos based on Barbie, but he was successful on appeal in having the case dismissed. He won. In defending his case, which means the exceptions under the law are actually broader than I thought. What made the case different was that he was selling photographs, not the actual artwork that he photographed. But he still won.

So what exactly is the problem?
posted by Pastabagel at 9:43 AM on October 25, 2006


Didn't this all get solved when hip-hop artists began using samples of well known music to bring listenability to their own crappy mixes? Thinking 2live-crew...
posted by shnoz-gobblin at 9:43 AM on October 25, 2006


Sound recording prior to '72 are still protected by state laws, and of course there is still the issue of the underlying musical work.
posted by caddis at 10:06 AM on October 25, 2006


Ugh. Yes, you can use copyrighted works to make a work of art. It's pretty much black letter fair use law.

You can buy a thousand copies of a copyrighted photograph, poop on them, and sell your one thousand pooped photos. You already compensated the owner, because you bought the work, and now you are modifying it (but they already got paid).


The above is simply not correct. The state of the law with regard to appropriating existing images for fine art is highly unsettled and varies from court to court, jurisdiction to jurisdiction. It is certainly not "black letter fair use law."

The photograph example could easily infringe on the derivative right and could be a violation of the Visual Artists Rights Act (if the photograph was printed in an edition of 200 or fewer).

Some great commentary and links here.

I also highly recommend reading this article. Warning: direct link to pdf.

I am an intellectual property lawyer, but not yours. This is not legal advice.
posted by anathema at 10:11 AM on October 25, 2006


Dealing with pre-72 sound recordings can be very difficult. Here is a good summary of last years Naxos case in New York which dealt with pre-72 recordings.
posted by anathema at 10:17 AM on October 25, 2006


You can buy a thousand copies of a copyrighted photograph, poop on them, and sell your one thousand pooped photos.

Buy one thing. Modify it. Sell multiple copies of the result.

The Grey Album... bought one copy of the white album, mixed it with one copy of the black album, and then distributed millions of copies of the mashup.

Buy two things. Modify them. Sell multiple copies of the result.

Do you see the difference?

Nope.

That is, I (think) I see the distinction you're trying to draw: you're counting the pooping-on as a creative work, independent of the copyrighted photograph that happens to be one of its ingredients. But you don't appear to be counting the mashing-up as a creative work in its own right. I disagree with that assessment: a good mash-up uses its source material as an instrument, the way a piano concerto uses the sound of a piano.

Following anathema, I'm fairly certain that neither of our opinions matches with current law; a strict copyright interpretation would disallow both the pooping and the mashing.
posted by ook at 10:46 AM on October 25, 2006


he didn't say sell mutliple copies of the result.
posted by caddis at 10:52 AM on October 25, 2006


Ok, the difference is you bought 1000 copies of the photo. Say the Hindenburg exploding. I'm assuming it does not fall under VARA. Each of those 1000 copies would be a licensed reproduction, like a poster, etc. You bought 1000 things, not one.

I'm not considering at all the creativity of the modified work (their are both creative in any case).

anathema - fair point about the jurisdictions varying, and maybe I exagerrated the way I said it. But I suspect that Easterbrook's rationale in ART (which is actually what I had in mind when I wrote my comment) is what is going to prevail in the future.
posted by Pastabagel at 11:07 AM on October 25, 2006


Pastabagel: But I suspect that Easterbrook's rationale in ART (which is actually what I had in mind when I wrote my comment) is what is going to prevail in the future."

Are you referring to this?

If so, I don't follow. What aspect of his rationale do you expect to prevail, and why?
posted by PeterMcDermott at 11:23 AM on October 25, 2006


Drat. Sorry Pastabagel. I follow along perfectly now. I was confusing you with deja420. Easterbrook obviously supports the points that you're making.
posted by PeterMcDermott at 11:26 AM on October 25, 2006


I'd be happy to talk about this stuff all day long, and I think Illegal Art and Stay Free! both deserve wider attention, but this is kind of a double.
posted by box at 12:13 PM on October 25, 2006


But I suspect that Easterbrook's rationale in ART (which is actually what I had in mind when I wrote my comment) is what is going to prevail in the future.

As Prof. Patry notes, the Dastar opinion could also be interpreted to support Easterbrook's rationale.

Regarding derivatives, the Register of Copyrights recently declined to follow Mirage Editions, Inc. v. Albuquerque A.R.T. Co., 856 F.2d 1341 (9th Cir. 1988) with regard to compulsory licensing of musical works used as ringtones. (Warning: direct link to pdf). In my personal opinion, the 9th Cir. opinion was just horrible. It has been flogged in both courts of law and public opinion. As usual, Prof. Patry has great commentary on the ringtone ruling.
posted by anathema at 2:51 PM on October 25, 2006


Should artists be allowed to use copyrighted materials?

Your question of should is easily answered as "yes".

The question being bandied about in the thread is "Are artists legally allowed to use copyrighted materials."

That is a much harder question as the commenters suggest.

Where do the First Amendment and "intellectual property" law collide?

Everywhere, and immediately. They are damn nearly mutually exclusive.
posted by Ynoxas at 2:59 PM on October 25, 2006


Great site, it's been around for a while.
posted by mediareport at 4:17 PM on October 25, 2006


pastabagel, I totally misread you earlier. My fault; apologies.
posted by ook at 4:18 PM on October 25, 2006


i'm sorry I asked
posted by donfactor at 3:28 AM on October 26, 2006


You can buy a thousand copies of a copyrighted photograph, poop on them, and sell your one thousand pooped photos.

As with everything else discussed about this depends on jurisdiction. In a lot of parts of the world you'd be infringing the photographer's 'moral right' to integrity/against derogatory treatment (a really dumb right). Also, fair use is a doctrine of US courts and is unusually liberal by the standards of the western world.

Could Google be sued in Australia because an American uploaded a copyrighted video to Youtube which was then download from US servers by a user in Australia? You bet it could, and fair use wouldn't mean a thing.
posted by A Thousand Baited Hooks at 2:47 PM on October 26, 2006


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