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.