comedies & tragedies of fair use
5/3 update: variant version of this post (an older version of the post but marked-up with hyperlinks) + other blog commentary from Joy Garnett @ newsgrist … liveblogging the meeting and this session
@ iptablog –
The Comedies of Fair Use meeting wrapped up a few hours ago. Among the best presentations were the art panel Saturday morning, in which Joy Garnett and Susan Meiselas each discussed their side of the incident that became known as JoyWar. (There were other panelists in this session too; for instance, Art Spiegelman, who was hilarious.)
“JoyWar” began when Joy Garnett appropriated a photograph she found on the Internet, and repainted it. Shortly after exhibiting it, she got a cease-and-desist letter from the photographer, Susan Meiselas. Joy’s art rapidly became a cause celebre among Internet artists and activists, who reposted Joy’s art and remixed it with many new works.
Susan and Joy had never met before the conference, but they both agreed to come and tell their story in a joint session.
Joy explained that she sought images on the Internet of people exhibiting strong emotions; she found the images, and then set them aside for a time, specifically seeking to decontextualize the images so she could later focus solely on their aesthetics. She then repainted the photo, and exhibited it as part of an exhibition called “Riot”. Mieselas’ photograph was perfect for Joy’s intended project: it showed a young man about to throw a molotov cocktail, an expression of intensity on his face.
Susan introduced herself by explaining that her goals as a photographer were precisely the opposite of Joy’s: That it was critical to her to contextualize the photograph, to embed the image in the subject, the historical and political moment in time. The photo, she explained, was of a young man on July 16, 1979, the night that Somoza was finally driven out of Nicaragua, and the Sandinistan revolution triumphed. The photograph of this young man in fact became emblematic of the entire movement, of the revolution itself, and was stenciled and appropriated by all kinds of people, with no objections (or permission) by Susan. Susan felt a strong social contract with the subjects of her photographs, and went back years later to contact them. This young man, it turned out, was still deeply committed to the movement.
The striking thing was the obvious pain that both women felt at the conflict. Though their artistic goals and methods clashed, both Susan and Joy were thoughtful and sincere. Susan, for instance, really seemed to feel that she was possibly “old-fashioned”; that she just didn’t get the new methods of appropriation. Joy, for her part, seemed to really appreciate Susan’s goals and interests; but stood firmly on her own principles. It really seemed in some respects a tragic conflict of interests, because, yes, Susan had real interests at stake. You couldn’t but respect Susan’s interests and the respect that she herself had for the subject of her work. I’m certain it took tremendous courage for Joy and Susan to come together in a public forum, after such a well-publicized conflict. And it’s a testament in particular to Susan’s courage and honesty that she presented her beliefs and reasons so articulately and passionately in the face of a potentially hostile audience.
The problem is that the interests Susan was seeking to uphold, through the tool of copyright, are not traditional copyright interests. Susan wasn’t particularly interested solely (or possibly at all) in trying to protect her licensing revenue. She was interested, rather, in protecting her right to be custodian of the image: an interest that isn’t even captured in moral rights as defined in Europe.
At the end of the day, Hank Shocklee, of Public Enemy, gave a “times they are a’changing” / “to the barricades, comrades” speech: He basically said that the old models of control are dead. It was a great moment, and I hope it’s true. There’s no question that we are paying too high a cost right now from excessive control over information. We are losing works, we are losing consumer rights, we are losing new forms of artistic expression.
But with every change, there are costs. Those who control information sometimes do it for a good reason. The hypertrophic growth of copyright law (as Jamie Boyle put it) has harmed the essential purpose of copyright law, the encouragement of creativity. But that same hypertrophic, harmful growth, nevertheless allowed Susan to pursue other interests not well protected in any other way: privacy, dignity, trust, political context and memory. I hope we find other ways — human, person-to-person ways — to protect those interests; they were never well served by copyright anyway. But it’s important to count the costs as well as the benefits for every change. I’m incredibly grateful I had the opportunity to see Susan and Joy speaking together so that I could see and hear the messy human values and reasons behind the legal conflict.
algorithmically similar posts:
» owning photographs, 2005-07-21 (score:20)» Bolivian Activist HipHop & Copyright, 2005-05-26 (score:18)
» aleatoric serendipity, 2004-12-08 (score:17)
» old works, new copyrights, 2005-08-08 (score:15)
May 3rd, 2006 at 9:17 am
It sounds like an amazing conference, especially the Joy/Susan discussion. WOW.
May 3rd, 2006 at 10:30 am
Comedies of Fair U$e: Post-Conference Commentary Transcripts…
image source This page will be continually updated as commentary and transcripts accumulate, and will eventually link to the NYIH site where they will post MP3 files of the entire conference, synched to Power Point slides, mash-ups, etc… In…
May 3rd, 2006 at 10:51 am
Laura, thank you for posting your thoughtful reflections of Susan’s and my joint presentation at the ‘comedies’ conference. I think I speak for both of us in saying we were grateful for having had the opportunity to tell the story together, at last, to such an open and serious audience.
best wishes,
Joy
May 3rd, 2006 at 6:45 pm
The Drama of Fair Use…
Laura Quilter has a wonderful post about a moving episode at the recent Comedies of Fair Use conference in New York.
“JoyWar” began when Joy Garnett appropriated a photograph she found on the Internet, and repainted it. Shortly after exhibiting i……
May 3rd, 2006 at 11:10 pm
“But that same hypertrophic, harmful growth, nevertheless allowed Susan to pursue other interests not well protected in any other way: privacy, dignity, trust, political context and memory.”
What you have just so poignantly described in Susan’s representation of her work is her *authorship* — her tangible expression. This is indeed what copyright protects. The “hypertrophic, harmful growth” of copyright is legal “scholar” mythology. An artist’s’ right to protect one’s authorship is more imperiled than ever. This movement to dismantle an artist’s right to her unpolluted voice is very troubling.
Joy may have been inspired somehow to create a derivative, decontextualized expression from Susan’s work. It should not be at the expense of Susan’s right to control the integrity of her work. The exaltation of Joy’s work and the celebration of Joywar seems to me to be nothing more than juvenile vandalism against Susan’s art.
I deeply admire Susan for facing an audience that may have been heavily weighted toward the free culture movement of anti-copyright and anti-authorship. I, too, don’t get it. In fact, any true artist that *creates* does not.
If someone wants to re-mix another’s original creative work, there is an embarrassment of royalty-free and unprotected works to draw from. And it was there long before copyright term extensions, creative commons and flickr. The public domain is awash with available imagery to play with.
Why can’t the free culture remixers respect artists who rely on copyright to protect their careers and livelihoods? Or is the artistic slander what it’s really all about?
Cynthia Turner
May 4th, 2006 at 5:16 am
I deeply admire Susan for facing an audience that may have been heavily weighted toward the free culture movement of anti-copyright and anti-authorship. I, too, don’t get it. In fact, any true artist that *creates* does not.
I’m an artist. I create. I get it.
I also admire Susan for making her case. But her claim of a primary, original authorship is at odds with her appropriation of an image of her subject. It is at odds with their personhood, their authorship of their own existance. This is at least as problematic as appropriation of a photographic image to make a painting. And many more people have now seen the photograph and come to hear about Susan’s work because of Joy’s painting.
Free culture is not anti-copyright or anti-authorship. It is pro-creativity.
May 5th, 2006 at 12:03 pm
Cynthia et al.,
It is important that you understand this: Susan and photographers like her exercise fair use when shooting photographs of other people’s intellectual property, of people and places without ever having to ask their permission. Documentary photographers would not be able to function if it weren’t for fair use. What she experienced when she saw my painting (whether it’s “derivative” as you put it I would be willing to mud wrestle over: I think not!) has been politely termed (by Siva V.) as “author anxiety.” It’s something we may all experience from time to time, and it does not signify infringement, but rather an emotional attachment to one’s original and to one’s intentions, an attachment that is perhaps, as Susan herself humbly described, “old fashioned.” But “originals”, especially if they are documentarian in nature, such as journalistic photographs, are and must remain open to quotation, critique and artistic transformation by others without the permission of the original’s author. And that’s where fair use comes in again: it is a limit imposed upon authors’ copyright control. Fair use is a good idea, it is written into the Constitution, it’s part of the Copyright Act, and it’s been there for a while. It would be kind of absurd, wouldn’t it, for an author to be able to exert absolute control over who gets to quote or reference or critique their work, and how? Where would dissent be? Or criticism? As I mentioned above, if that work is informational in nature, it is vital that it be subjected to as many interpretations and generative processes as possible. How might it be considered good for one single individual to control the framing and context of something as complex, as multi-faceted as, say, a revolution?? That is where the argument of total control would eventually lead us, to a pure fascism of representation. I do not use that word lightly. And as Judge Kozinski was quick to point out at the conference, once you put a work out there it becomes part of our common cultural experience, it belongs to some extent to all of us (otherwise why put it out there?); it is something that will be built upon regardless of the author’s wishes – it is something that we as artists have a responsibility to respond to and yes, create new contexts for.
May 8th, 2006 at 7:43 am
As strange as it may seem, artists like Cynthia Turner may have something to learn from how scientists treat their cherished published work. The issue here is not copyright–scientists still tend to sign away their rights to journals–but instead something much deeper than copyright–control of the physical materials produced and invented by the scientist for the production of the published work. Typically when a scientist publishes a paper, they sign an agreement that they will make all the tools they created and used in the work freely available to other (competing) academic researchers. Scientists agree to this practice not merely for the pedestrian reason that others may want to verify the work, but rather because others want to extend the work. This is because scientific publications are not end points but instead they are like torches being passed from one scientist to another in the marathon effort to advance knowledge and understanding. A good measure of success in science is not simply how many papers are published or where they are published, but instead, how often a published work is cited–how often it has been passed as a torch from one scientist to another. I suggest that Cynthia Turner and other artists consider this communal aspect of publishing: published works should not be thought of as end points in themselves, but rather as contributions to a growing body of thought and knowledge that advances human culture. If an artist is lucky enough to have their work commented on–by say a “derivative work”–then the original artist should perhaps consider it a great honor.