Fair Use

A note on the ongoing Shepard Fairey Obama poster fair use debate:

Earlier this week, the Art Law blog posted the following question:

...This relates to a question I've been meaning to put to those who believe Fairey's was a fair use because of its "transformative purpose": would the argument work in the other direction? That is, assume a well-known photographer creates an image the purpose of which is to move people, express some idea, touch our souls. Now along comes a crass commercial artist who makes modest changes to the image along the lines of what Fairey did here, and then starts mass producing and selling posters of it. Now we have a totally different purpose -- to make boatloads of money. Fair use? Or is "transformation" a one-way street?

Shepard Fairey, *"MLK," 2007?

I do believe that transformation is an important element of fair use, although I suspect that I'm more liberal with my threshold for sufficiently transformed. However, I don't think it's a two-way street. Why not? Because, in my admittedly limited understanding, fair use exists to allow non-commercial uses of works without paying a fee. The sticking point for me is not really the issue of transformative, it's the issue of defining non-commercial intent. It seems obvious that someone selling mass produced "schwag" is there purely for commercial intent, but the line gets blurrier when you deal with an artist who is reusing images or sounds and might want to sell their work to a collector. Or, in the case of successful mash up artists like Girl Talk, thousands of fans.

Are we stuck, then, in that seemingly obvious yet logically indefensible realm, the arbitration of taste?


*I chose this image because you have all seen the Obama poster by now. This much more transformative and subtler image predates it.

Sparkle

Funnier than Damien Hirst. (By Liz Wolfe.)

beating a dead horse

Ok, not to resurrect the most tired debate in the humanities, but... What's with this whole Modernism -> postmodernism continuum anyway?

More specifically: I have always thought of these and other major movements as culturally relative. Even as globalism spreads, it seems that the rise and form of Modernism and postmodernism in different regions has everything to do with local conditions. Yes, European Modernism influenced the development of late or American Modernism, but what makes them distinguishable has something to do with the circumstances of the different cultures from whence they came.

Thus, I never though of either movement as universally inevitable. It doesn't make sense to me to say that as "developing" nations industrialize there will necessarily be a Modernism and a postmodernism. With different cultural and historical backgrounds and different (and much more rapid) conditions of industrialization, it seems that these artists might develop work that deserves a name of its own. Of course there is influence from the industrialized Western sphere. Artists adopt, parody, integrate, and transform almost everything they interact with. But that does not meld them with their Western counterparts.


Wang Guangyi, "Porsche" 2004

I'm reading New China, New Art by Richard Vine. In the section on painting, speaking of the problematic relationship between Chinese art and Modernism, he writes

No wonder experimental artists like Yue Minjun and Wang Guangyi have essentially skipped modernism and plunged directly into postmodern, deconstructive pastiche. (p.31)

It is impossible to deny, looking at works like Porsche, that there is a relationship between American and European postmodernism and the visual language of this new Chinese art. (Obviously there is brand crossover.) But it is the absorption of influence into its own terms. As Vine writes in his introduction

References to Western art were numerous... but certain elements... remained deeply puzzling to non-Chinese viewers. (p.8)

Are these elements not unique enough? Can I really accept Vine's assumption that Western culture has so deeply and globally entrenched itself that all post-Industrial art making is subsumed under the umbrella of Modernism and postmodernism? Then again, the mere fact that contemporary Chinese artists are working heavily in cultural pastiche, a mashing-up de- and re-construction of an increasing flood of imagery and ideas, suggests an inescapable postmodernism.

Modern and postmodern. Perhaps I'm just chafing at how undefined are these terms that have such a chokehold on analytical language.

Stimulus package

Very belatedly: On Friday, $50 billion for the National Endowment for the Arts just squeaked in to the final House/Senate compromise stimulus bill, and the Coburn amendment was narrowed so that arts centers and museums can now receive stimulus funding.

Some heart warming art + economy quotes from this NY Times article on the details:

"It's a huge victory for the arts in America," said Robert L. Lynch, the president of Americans for the Arts, a lobbying group. "It's a signal that maybe there is after all more understanding of the value of creativity in the 21st-century economy."

"It's a great opportunity for the cultural work force to be dignified as part of the American work force," she said in an interview. (Patrice Walker Powell, interim chairman of the NEA)

Also, for the curious, the American Association of Museums has an ongoing study on the arts and the economy called Excellence in Equity.

What is intrinsic value?

I recently finished reading Arts, Inc.: How Greed and Neglect Have Destroyed Our Cultural Rights by Bill Ivey, chairman of the NEA under the Clinton administration. The book is essentially Ivey's passionate argument for why the arts should take a more important role in American public policy.

There are a lot of interesting points of history and policy in this book, but the main question that it raises is how we can measure the value of the arts in our lives.


Ed Ruscha, "A Particular Kind of Heaven," at San Francisco's de Young

Ivey is particularly interested in persuading his readers that the pursuit of an "expressive life" - our right to both experience and produce art - is inherently American. The expressive life, Ivey argues, is an essential part of the constitutionally protected right to the pursuit of happiness. Therefore the practice and consumption of arts should be a fundamental freedom that is guarded and encouraged by government policy.

Ivey opens the book with a Cultural Bill of Rights - not to be literally entered into law, but to guide our pursuit of personal freedom through creativity. This is worth re-posting:

Bill Ivey, "The Cultural Bill of Rights"

1. The right to our heritage - the right to explore music, literature, drama, painting, and dance that define both our nation's collective experience and our individual and community traditions.
2. The right to the prominent presence of artists in public life - through their art and the incorporation of their voices and artistic visions into democratic debate.
3. The right to an artistic life - the right to the knowledge and skills needed to play a musical instrument, draw, dance, compose, design, or otherwise live a life of active creativity.
4. The right to be represented to the rest of the world by art that fairly and honestly communicates America's democratic values and ideals.
5. The right to know about and explore art of the highest quality and to the lasting truths embedded in those forms of expression that have survived, in many lands, through the ages.
6. The right to healthy arts enterprises that can take risks and invest in innovation while serving communities and the public interest.

I should clarify that Ivey makes it clear throughout the book that he is using a broad definition of art that extends from Old Master painting to folk dance to Beyoncé. By art he means creative expression, in a general sense, and I think that's an important element to his argument that it serves the greater social good to encourage arts and arts organizations. For Ivey, the category is neither exclusionary of the "low" or "popular" nor "high" or "difficult."

(One of the bones I have to pick with this book is his dismissal of the entire visual arts community as ivory-tower painters. Yes, painters, specifically. But, I suppose specialists of visual arts, music, performance, dance, etc. will all feel glossed over in a book that attempts to encompass them all. Also, he's more advocate than writer, or UC Berkeley Press needed to assign him a better editor.)

Back to my original question: What is the value of the arts? I think about this question in two ways. One is very personal. When I speak to a social worker, it is difficult not to see pursuing a career in arts administration as somehow frivolous, as though my love of art should be secondary to an apparently nobler service. (I think this question would be a lot easier to dismiss if I were a professional artist, which probably reflects my sense that the act of making art that can be successful in the world is in itself a nobler service.)

The other level is more social. As Ivey points out, American arts advocates often justify support for arts organizations and arts education as a means to another end: Studying music will make you better at math and engineering. Instinctively, I feel like art has intrinsic value, but how do you define or defend that claim in the face of, for example, rampant job and home loss?

This is, obviously, painfully relevant right now. We've all watched the arts become an easy target in the partisan battle over Obama's much-vaunted stimulus plan. For Republicans, the National Endowment for the Arts and its "checkered past" is too tempting a scapegoat in the tired culture wars. Republican nitpicking over a fraction of funding to a significant part of the American economy is unsurprising. What's been truly disappointing is the rapid defection of many prominent Democrats.

The immediate arguments against cutting the NEA out of the stimulus package: The arts and art nonprofit communities supply a lot of jobs. Studies show that successful arts organizations have a high positive effect on local economies. In the New Deal, the Works Progress Administration contributed significantly to the history of American art by hiring artists to create public work.

But why are the arts are so expendable in the first place? Another current controversy in the arts world comes from the same assumption, that art is the first thing to go, like a body sacrificing its reproductive organs when it becomes malnourished: Brandeis University is eliminating the Rose Museum. (Tyler Green on the issue.) The art museum is, I am fairly confident, as important as the library and the labs. It is part of the lifeblood of the university, and simply selling off the collection is a shockingly drastic measure.

I am less confident that the arts are as important as food, housing, and health care. I still think that the $50 million, one/seventeenth the total of the package, that the House approved for the arts should go to the arts. It will have a stimulating effect on the economy, it should be part of the stimulus bill. But in such a time of social and financial crisis, how do we formulate an argument for more attention to the arts, for a larger role for the arts in policy?

Ivey's constitutional argument falls short for me. If the arts are only important to American culture because they are required for the pursuit of happiness, then they must fall by the wayside when basic needs aren't being met.

That assertion starts to take form better when he gets into the dual nature of the expressive life: Being in touch with your cultural heritage, and having access to the skills and motivation to be an active amateur creator. What arises out of this is more than personal pleasure and satisfaction: It's community. An active arts community should be open and accessible to anyone. It is the foundation of culture, and it is also a positive social glue that brings people together in times of poverty and crisis.

I certainly haven't come to any conclusive answers to the question of valuing art, but I do think it is more than hedonism or narcissism.