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Copyright vs. Copywrong by Addison Thompson

I’ve met many an artist who has had to deal with it: copyright infringement. Just what are artist’s rights? Addison Thompson takes it on for Art Nerd.

Rasta hiding in the weeds. Jamaica 2000 by Patrick Cariou

Rasta hiding in the weeds. Jamaica 2000 by Patrick Cariou

Rasta hiding in the weeds. Jamaica 2000 by Patrick Cariou
Copyright vs. Copywrong by Addison Thompson

1. Hood vs. Nottingham

The story of Robin Hood contains the basis for the rationale of the development of human rights in English Law and their later manifestation, as civil rights, in American Law. Robin Hood was a commoner whose family had once been aristocrats. Some, accounts say their title was taken from his family by unfair means. The newly aristocratic Sherriff of Nottingham was vigilant in asserting his prominence.
The Sheriff, a master bowman, invited all the local archers to a tournament of “free and faire play.” Meaning, a level playing field, where only skill and ability can win. The Sherriff of Nottingham’s secret weapon was he used a panel of judges to determine the winner in a close decision. The Sherriff hit the bull’s-eye and Robin split the Sherriff’s arrow, but he didn’t hang around to collect his prize. Nobody beat the Sherriff of Nottingham.
By the 17th Century in England, concepts of human rights developed in literature and philosophy, as a framework for codes, rules and laws which inhibited privilege, based in status or special relationships.

2. Germanotta vs. Francescatti

Lady Gaga ‘s (Ms. Germanotta) lawyers are demanding that Rebecca Francescatti, a singer/songwriter, pay Gaga’s $1.4 million legal fees. Lady Gaga heard an altered version of Ms. Francescatti’s music, offered to her by Francescatti’s former bass player/boyfriend and his DJ partner. Gaga doesn’t write her own songs, per se, but relies on songwriter’s to supply her with ideas to use as raw material. Francescatti’s song Juda resulted in Lady Gaga’s song Judas. Judge Aspen’s ruling in the case was based on an “ordinary observer” (listener) not being able to distinguish between the two songs. The two female artists have different styles and sonically Judas sounds like a Lady Gaga song, until you compare the lyrics. Gaga alternates using the names “Judas” and “Juda”; however, she effectively mimics Ms. Francescatti’s song.
Francescatti details her position in her blog:

“Access to a person’s work […] usually holds a lot of weight in copyright infringement suits, even more so than similarity of songs,” she said. “But a new trend is upon us. Judge Aspen, and the rest of the Seventh Circuit court, don’t consider direct access very important anymore in copyright claims.”
“Their most recent rulings stand as a body against individual creators (me) and in favor of corporate structures that put out music today (i.e. Lady Gaga, Inc.) by ruling that it doesn’t matter if your friend gave it to Lady Gaga: An ‘ordinary observer’ (whatever that means) would have to be able to hear that the songs are the same.”

Ms. Francescatti further claims Gaga’s song pirates’ musical notation, sequencing and structure from Juda. The songs might not sound the same to an ordinary person; but an expert witness, with musical training, could provide testimony as evidence, to prove a common origin. Regardless, it is the nexus of the idea which has been transmitted, adapted and incorporated by Lady Gaga, into her version of Juda.

Ms. Francescatti doesn’t have to worry about paying Lady Gaga’s legal fees. In a similar art law case, Honorable Judge Carol Edmead, NY State Supreme Court points out:

“….the rule embodied in 22 NYCRR 130-1.1 gives the Court, in its discretion, authority to award costs “in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney’s fees” and/or the imposition of financial sanctions upon a party or attorney who engages in frivolous conduct.” Conduct is frivolous is defined by: 1. it is completely without merit in law; 2. It is undertaken to prolong or delay litigation or to maliciously injure or 3. It asserts material factual statements that are false.”

3. Cariou vs. Prince

Patrick Cariou published Yes Rasta in 2000 at Powerhouse Books. Cariou’s book is a series of photographic portraits of counter cultural Rasta families living off the grid; in the mountains of Jamaica. Richard Prince, who also takes ideas from other artists, (an old idea he has driven into the ground) made photographic enlargements of Cariou’s images and then with no license, painted stigmatizing cliché cultural references, right over Cariou’s Rasta photographs.

Cariou easily won the first round. Meantime, Prince gets letters of support from the Andy Warhol Foundation and Google! After a series of mistaken authentications including authenticating paintings made after Warhol’s death, the Andy Warhol Art Authentication Board lost their insurance and was put out-of-business in 2011. Google is afraid because they don’t hold a license for third party images posted on their site. Art museums are worried too, because in some cases, they might not own publication rights to art in their own collections. Prince is represented by Boies, Shiller & Flexner. The same law firm that represents the Andy Warhol Foundation and Anne Friedman, formerly President of Knoedler Gallery, who sold dozens of fake Abstract Expressionist paintings before her source admitted the paintings were all made by a Chinese man from Queens. Before he was arrested, he has since flown back to China.

In the most illustrated Prince painting, Cariou’s Rasta portrait is transformed into a cliché of Bob Marley holding a guitar and wearing a tribal mask. Cariou’s intention was to offer a dramatic contrast between the usual images of Jamaican poverty and his idyllic images of people moving away from modern society, in search of a new Garden of Eden. Prince’s use is equivalent to trashing Cariou’s photograph. I imagine Prince traveling to Jamaica to show the Rasta’s his paintings. Would the Rasta’s offer Prince some herb or cook him?

On appeal Cariou lost the case. Previously, copyright decisions regarding pirated art or music, were based on whether the work was transformed by the new use. The concept of “transformative use” originated with a seminal 1990 Harvard Law Review article by Judge Pierre N. Leval. His interpretation of the law was that the creator of a work, based on the original creation of another, won’t be liable, if the original work is transformed in the process; and what constituted transformation, by Judges in subsequent cases, was given an ever broader interpretation.
In the Cariou vs. Prince case the Judge subverts transformative use, by finding a better excuse in a reinterpretation of fair use. Examples of fair use include commentary, search engines, criticism, parody, news reporting, research, teaching, library archiving and scholarship. It provides for the legal, unlicensed citation or incorporation of copyrighted material in another author’s work under a four-factor balancing test. 1. The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; 2. the nature of the copyrighted work 3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; 4. and the effect of the use upon the potential market for or value of the copyrighted work.

In the end, the appeals court was still confused about 5 of Prince’s paintings, he finally paid Cariou, an undisclosed amount. A very small price to pay for the far reaching implications and legal consequences: for individual artists like Cariou and Francescatti, by this Judges’ new interpretation of “fair use”.

4. Copyright vs. Copywrong

“Flash of Genius”, is the David and Goliath movie about Robert Kearns, the inventor of the intermittent windshield wiper. The expert witness for Ford Motor Company testifies that Kearns’ original intermittent windshield wiper design isn’t an invention, because it was just a string of parts that anybody could buy at an electrical supply store. A transistor, a relay, a capacitor and a potentiometer. Kearns sent his son from the courthouse to a bookstore and he returned with a copy of Moby Dick. Kerns showed it to the jury and told them that Moby Dick was just a string of words; any of which could be found in a dictionary.

When Andy Warhol borrowed pictures from photographer’s, in the 1960’s, photography wasn’t even considered an art, yet this was well after Robert Frank had published The Americans. In his commercial art business, Warhol realized that photography had usurped painting. Photography was a better match for the requirements of efficiency and authenticity; of images, in the modern age.
The stated objective of most intellectual property law (except trademarks) is to “Promote progress.” When judges develop complicated interpretations to promote economic progress over intellectual progress. How is the solitary artist, working in their garage, supposed to get “15 minutes of fame”?

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