Will artists be the next victims of the Napster/Pirate Bay effect?
We blinked, and suddenly we’ve been jolted back into the late 1990s or early 2000s. That’s right, we are time travelling here, with the sudden discussion and resurgence of court cases cropping up in the mind-numbing debate surrounding copyright infringement and piracy issues. This time rather than taking on the music giants like Napster and other peer-to-peer sharing sites, the piracy and copyright legal machine has dug its claws deep into the art world and it is beginning to bring forward cases surrounding several preeminent figures in the contemporary art scene. All of this is a byproduct of the success of the art market. Where there is money there is a sleazy lawyer ready to take it away!
At the forefront of this new legal dispute is work by artist Richard Prince, who is appealing lower court decisions made in conjunction with his series “Canal Zone”. Prince’s legal representation is claiming that even though there may have been a breach of copyright laws, the artist has sought to receive proper licensing to obtain the rights to use photographer Patrick Cariou’s work. In the event that the case does not grant Prince the right, the consequences could cost the artist “millions”.
It appears that there is a change in the tides as more artists are actively seeking to purchase the rights to use the work of other artists. This is a particularly sore issue for Jeff Koons who has been at the centre of a multitude of cases surrounding his use of unlicensed material. The legal battles for Koons began a decade ago, costing the artist a great deal in legal fees and out of court settlements for his ability to use the work of others. What is most interesting is that Koons’ legal team now states that the artist is actively seeking to obtain licensed work following the five-plus court cases that have surrounded his work. Let’s not forget, it was Koons who tried unsuccessfully to sue a Canadian company for making balloon dog bookends, BTW he lost the case after the judge decided that you couldn’t copyright balloon dogs, as they had been around for many years prior to the Koons sculptures.
Another high profile case was brought by the lawyers representing the AP wire service which stated that the photograph used by street artist Shepard Fairey to create his iconic image of Obama’s Hope poster, violated copyright and was used without permission. AP successfully argued in court that using the image was a willful and blatant violation of the copyright of the photo. The original photo, taken by Mannie Garcia in 2006 was graphically treated by Fairey and mass-marketed before the US presidential elections. This iconic image was central to the image-making of the Democrats’ presidential campaign.
It must be a thrill for artists’ estates such as the Andy Warhol Foundation to have a legal team to prevent any serious damage to their persona, yet what is to happen to young artists who wish to “appropriate” work, owned by other artists? Licensing fees are still not cheap enough for those struggling to make ends meet and if copyright breaches are brought against an artist how many artists can realistically obtain a legal team to represent them against a major corporation for example? There are a myriad of loopholes and tactics for artists to use if copyright infringement becomes a problem but that is just a measure of curing the symptoms rather than the cause of the problems. If anything these loopholes and legal manoeuvres a variety of prolific mainstream artists use to encourage the younger generation to also look for legal, yet questionable ways, of obtaining work for replication in some form.
The future of copyright laws in the contemporary art world is reaching a critical point. The case surrounding Prince outlines the importance of clear cut legal rules for appropriation. It is a matter of the modern global legal structures catching up with the new and emerging issues that the art community and other groups are facing and providing a means for artists of all means to appropriately credit the work of their peers in a variety of contexts.
Photo © Artlyst