Slippery Slope: From ‘Appropriation’ to Art of the Rip-Off

Artists Fairey and Prince Lose  Copyright Disputes

No sooner had one famous copyright dispute in the visual arts been resolved than another comes down the pike. In rapid succession, the street artist Shephard Fairey and the “appropriation” artist Richard Prince have been found culpable of ripping-off other people’s art to make their own.

            In mid-March, Fairey settled his final disputes with the Associated Press, whose photo he used without permission in his celebrated Barack Obama “Hope” poster of 2008. Then on March 18 a New York judge ordered Prince to turn over art work that copied French photographer Patrick Cariou’s original images of Rastafarians, photos that Cariou laboriously took in Jamaica.

            In the latter case, the court may allow the destruction of Prince’s art works. The court also told art collectors who bought the Prince works through the up-scale Gargosian Gallery (amounting to $10.5 million in sales) to cease displaying them. With so much at stake, Prince will doubtless appeal the ruling.

            In both cases, the rub is that two artists, Fairey and Prince, benefited financially by using art work created by another artist, and did so without asking permission. The U.S. Copyright Act allows for “fair use.” This is to allow for progress in arts and science by way of criticism, freedom of the press, scholarship, and education. But in both cases, Fairey and Prince, while claiming fair use, pretty much cribbed one work of art to create another work.

            For centuries, legalists have recognized the “piracy” of intellectual and creative property. The Fair Use clause was added to the Copyright Act in 1976 in response to the technological revolution, which made it easy to copy and distribute other people’s works. Today, everything from book chapters to pictures are copied for educational use, but usually with permission. In its four-point test, the fair use doctrine does not accept free use of copyrighted material simply for the sake of financial profit.

            The modern-day, fun-spirited piracy of art perhaps began when Marcel Duchamp put a mustache on a dime store picture of the Mona Lisa, a kind of fair use rip-off of Leonardo da Vinci. Only in the 1970s, however, did we learn about “appropriation” art. This art claims to make ironic and critical statements on the nature of art itself by reproducing or re-using other people’s works. The appropriation philosophy became more sophisticated—and market savvy.

            In the recent case, Prince produced a mural-size series of works titled “Canal Zone.” The series combined photos and painting, but 41 of the photos were directly photo-copied from Cariou’s book Yes, Rasta. In the Fairey case, the silk-screen artist first sued Associated Press in 2009, saying he had the right to use their photo without permission. The AP sued back. As it became clear that Fairey was not going to win, they settled out of court: Fairey must share profits with AP, and the clothing line that uses the image must do likewise. (The AP profits will go to a distress fund for AP personnel).

            Neither Fairey nor Prince can again use works by the other party, either AP or Cariou, without asking permission. This is what most people would consider the normal way of doing business. Many artists see things differently, however, as a growing number of lawsuits indicate.

            The first major ruling came down in 1992, when a federal court said that artist Jeff Koons could not use another person’s photo of puppies to create a series of sculptures to be sold. Koons claimed that his sculptures were fair use “parody,” a sly commentary on the corny puppies photo. Koons lost and had to pay damages. The key legal point of the ruling—a precedent carried into the Prince case—is that fair use is about obvious “commentary” on something, not a wholesale copying to produce a new saleable product.
            On the street this is called a rip-off. And yet, as the appropriation artist Andy Warhol said: “Art is what you can get away with.”

The Malthusian Dilemma of the Arts

Population Change a Force Behind Today’s Art Trends

Thomas Malthus, the 19th-century writer on human population, was no artist. But he gave us the idea of the “Malthusian cycle,” which hints at how the rise and fall of populations can affect everything, even trends in the arts.
        One recent population finding, for example, is that the number of younger people who appreciate art in the United States will not be enough to replace the art aficionados in the aging baby boom generation.
        Those baby boomers, born between 1946 and 1964, still account for most Americans who participate in art activities. Within the baby boom group, moreover, a smaller segment has shown interest in a wide range of arts. This dedicated segment of art lovers is just 13 percent of the entire U.S. population, but it accounts for 58 percent of art participation. Population researchers are thinking about the art scene as an “arts ecosystem.” So they call this highly active group of baby boomers “omnivores”: they consumes many kinds of art. This aging omnivore population may not be adequately replaced in the future.
        It’s not that younger Americans do not appreciated art. There are just not enough of them to replace past rates of art participation. Today, about a third of Americans attend art events, but that is down from about four in ten a decade ago. “If these trends continue, the health of the arts ecosystem will be in jeopardy,” says a new study by University of Chicago and University of Pennsylvania researchers.
        What is more, the fastest growing parts of the U.S. population, Latinos especially, but also black Americans, are least likely to take interest in the arts. This is attributed to a lack of art education in their public schools, which tend to be poorer. This just in from the 2010 Census: one in six Americans is now Hispanic. In this group alone, the absence of art literacy could lead to more national indifference toward arts participation.
        The original Malthusian equation was based on the idea that since population grows geometrically, it will outpace food supply, which grows more slowly by addition. Eventually the mismatch between people and food leads to starvation, disease, war, and revolution, all of which cut back the population, restoring a balance.
        This dire equation has been proven wrong where human ingenuity can produce food and health to keep up with population. Even so, Malthus pointed to the concrete effects of the ebb and flow of population. Given the population shifts in the U.S., the country is simply running short of enough people to maintain the current support for the arts. The antidote is a bumper crop of young art omnivores to replace the old ones. Bringing this about will require ingenuity. For now, that solution is described as more art education at home and in school.
        Population changes are also rocking the worldwide art market. The British Art Market Federation has just announced that China has passed Great Britain as the second largest art market in terms of gallery and auction sales. The reason is clear: China’s large population is aggregating new wealth in that country. The United States is still the largest market, a 34 percent share compared to China’s 23 percent (and Britain’s 22 percent).
        With its small population, England had done remarkably well for generations on the art front, but populations eventually determine wealth (as do tax policies, which are less favorable toward art sellers these days in Europe than elsewhere). The value of sales in China has doubled since 2009. Not for nothing are contemporary artists going to China to install art exhibits, and U.S. art schools are catering to foreign exchange students.
        The Malthusian population cycle began with a pessimistic vision, though human ingenuity was able to outsmart its dark vision. In the art world, it seems that the dark side will just move around, visiting various nations as their art markets, and their art-appreciating populations, rise and fall, and presumably rise again.

This is Your Brain on Art, Abstraction, and Beauty

Cognitive Science in Search of Human Aesthetics

When researchers in Boston found that viewers appreciate professional abstract paintings more than abstract paintings done by children and animals, the conclusion was this: human beings delight in detecting human “intentions” in creative works. The abstract brushstrokes of a mature and mindful painter, in other words, come off differently from the brightly colored smears of a child or chimp armed with a brush.

            The findings, coming out of Boston College and reported in Psychological Science this month, tear a page from the book of “cognitive science.” The cognitive question for art is whether all human minds, having the same natural origins, tend to find “meaning” or “beauty” in similar kinds of objects. Or, on the other hand, is all judgment of beauty purely a matter of culture, and thus different in Africa and Scandinavia, for example?

            In the Boston research, the psychologists suggest that the brain naturally detects human “intention,” since the brain itself is an intention-driven organism. This is classic cognitive science: the brain is endowed to see “minds” in other things, but especially things that have the marks of mind, such as skilled handwork, even if this skill is hidden behind abstract configurations.

            Not every human intention in art is appealing, obviously. In the study, a large fraction of the student participants liked paintings by a child, monkey, chimpanzee, gorilla, or elephant better than a comparative work by one of the ten top Abstract Expressionist painters of the past mid-century. We can sympathize with the difficulty for the Boston researchers. Some of the Abstract Expressionist works are simply not compelling. Even those legendary painters had many more bad days than good ones.

            The real upshot of the research, however, supports the intention theory. Most participants favored the professional abstract painters. What is more, the subgroup of art students in the study preferred the professionals most. These art students, having done intentional paintings themselves, knew an intention when they saw one. They saw mind and skill behind abstract fields of line and color.

            Recently, this debate on the brain and art has gone up a notch. The popular field of evolutionary psychology (about the same as cognitive science) presents the case that all cultures, based on the same human brain, have the same appreciation of craft, skill, and certain aesthetic attributes, like paintings with a blue lake and shady trees. The cultural relativists disagree, of course. They would say “taste” is determined by culture only. So, if Africans like a painting with a blue lake and trees, it’s only because they’ve been colonized by American kitsch calendar paintings.

            We can be confident, however, that the scientific view is onto something. If a particular preference for a certain kind of beauty is deep within all human brains (related to a survival advantage over eons), then all human beings will roughly agree on which art is likeable and which is not. According to the Boston study, we tend to like art that shows mental exertion and skill—that is, intention.

            Last year, the Johns Hopkins University Brain Science Institute, which researches “neuroaesthetics,” did an experiment to see if the brain has a common measure of beauty when it comes to shapes (or “shape aesthetics”). At the Baltimore Museum of Fine Arts it displayed French surrealist Jean Arp’s famous biomorphic sculpture, considered an epitome of a harmonious shape, and along side it dozens of similar shapes. The experiment, still being assessed, wants to see if museum-goers agree on which shapes are most appealing. (In another part of the experiment, the Institute has done MRI brain scans to see where blood flows when the different shapes are viewed).

            At a forum on the project, a Johns Hopkins researcher conceded that something as general as shape might not be determinable in terms of “universal beauty.” Even if it were, according to an artist at the same forum, the role of the artist is to deviate from brain preferences for beauty, either to shock people or to train them to see beauty in deviations.

            This re-training of the brain is the history of modern art, and especially abstract painting. The Boston research was motivated by recognition that people still have a hard time giving credit to abstract art. So the researchers seemed happy to find that if we detect human intention in abstraction—a mature human mind at work—we are pleased. “The world of abstract art is more accessible than people realize,” they report.

            Art history has its humor on this topic. Animals have been passed off as artists. At the 1912 Salon des Indépendents in Paris, three paintings done by a donkey tail—entered under the fake name of the dissident Italian futurist painter Boronali, a member of the avant-garde “excessivism” movement—drew favorable art reviews and were purchased. One donkey painting was titled, “The Sun Falling Asleep Over the Adriatic.”

            An aimless donkey tail differs from human intention, of course. In the Boston study, the participants who mostly liked mature human paintings over child or animal expressions “were more likely to justify their selections . . . in terms of artists’ intentions.” Or as the researchers told Psychology Today: “This finding shows that we can see the mind behind [abstract] art.”

Yes, Virginia, There is a Picasso

U.S. Tour of the Cubist Pioneer's Artworks Touches Local Pride

Richmond, Va.—The floodgates at the Virginia Museum of Fine Arts, host to a three-month Picasso exhibition, are just beginning to open. In the exhibit's third week, the word is getting out. The crowds are picking up. Over a single recent weekend, 7,000 people swirled through the maze of ten gallery rooms to see the Spanish painter’s work.

            After its recent building expansion, the Virginia Museum was able to persuade the home of the world’s largest Picasso collection, the Musée National Picasso in Paris, to make Richmond the east coast stop for an international seven-city tour. It is made possible during the Paris museum’s renovations through 2012.

            While some art-scene writers are sounding a bit dismissive—noting that this is merely a convenient “reno show” prompted by European renovations—the public is following common sense: Here is a once-in-a-lifetime opportunity. When else, short of a Parisian trip, can you see a full sampling of Picasso’s works?

            Some of what the critics say is true, of course. The 176 works cover such a span of Picasso’s career (1904-1972) that, while starting off strong in his vigorous, innovative youth, they can end weak, reflecting his old age. Only a small portion of works are well-known masterpieces. Even so, this unevenness is part of the experience. Many of the visitors are saying, “I didn’t know Picasso did so many things,” or, “I didn’t know he painted so many years.” One visitor candidly says, “I still don’t ‘get it,’” but that is not uncommon during encounters with modern art. It is an acquired taste.
            Behind the Picasso mask, there is a life of gritty detail that few people learn about, since that takes dedicated reading (the museum show offers little on this front except the book shop). As to his art, it also takes time to appreciate what Picasso was truly a master of: the use of line in drawing, his freedom with paint, his visual compositions, and his ability to create iconic atmospheres. This is what the exhibit reveals.

            It seems almost useless to say anything descriptive in print (in a blog) since the Virginia Museum Web site, and a virtual tour project, shows nearly all of the exhibition. In fact, it can be so crowded some days, watching the exhibit on the Internet can also seem preferable (or better, go in with the crowds, then go back by Internet to look again).

            What only a real-time visit can offer, however, is a physical sense of the works. In his pencil and pen drawings, and in his etchings, it is remarkable how fine a line Picasso can draw. He shows this especially in very small gouache and oil paintings, as if done with a few hairs on a brush. On the other hand, the brush work in larger paintings can be remarkably casual. The paint runs thin here, thick there, scumbled and scrubbed. What one gathers is that, in the process of composition (and Picasso did like to do quickies), the overall effect was more important than filling in paint with exactitude.

            One other indispensable experience is to see the actual sizes of the Picasso paintings (and sculptures). Some works seen printed large in art books, for instance, are in fact no bigger than an iPad. Other works, shown small on the page, resemble the size of a picture window. Whatever the cost of good canvas, wood, and paper was back in Picasso’s early days, he still apparently used the best, and the paper and linen textures show through.

            For a southern museum such as Richmond’s, the traveling exhibit is an obvious boon, costing it about $5 million, but hopefully generating more (if the hoped-for 200,000 attendance bears out) and raising its regional prominence. In the U.S. leg of the world tour, the previous stop was Seattle (attendance 400,000 for a much larger metropolitan area), and next comes San Francisco. We’ll see if the U.S. event can reach a million viewers.

            Back in 1897, it was a New York Sun newspaper editorialist who famously told a young letter-writer, “Yes, Virginia, there is a Santa Claus,” to perpetuate the wonders of youth. Now, it is the state of Virginia that’s helping perpetuate appreciation of European art, which in its concreteness, craft and accretions of history, is a tangible treat amid much of today’s contemporary art, which can seem very make-believe.

‘Burning’ Your Way into Art School

Art Student Eyes Portfolio, Creates Piano Mystery, Garners Fame

It began as a Miami Shores mystery. One day a burned-out grand piano appeared on a sand bar off the South Florida coastline. Nobody knew how it got there or why. Eventually it became the story of a Miami high school student hoping to bolster his art portfolio. He was applying to a very competitive art college, The Cooper Union in New York City, and wanted to stand out.
            For the media, the strange January appearance of the piano in the middle of the bay became a story with legs. For the state authorities, it was a matter of littering: a felony under environmental laws protecting the waterways. The parents of the student, sixteen-year-old Nicholas Harrington, viewed it as a family adventure that turned into a “magical” moment. World headlines proclaimed the mystery of the errant, elegant piano—where did it come from?
            Nicholas launched the piano venture as a possible ticket into a prestigious art school. Rare among art colleges, The Cooper Union inducts only about fifty students to its freshman class in the fine arts division each year and offers them free full tuition (but not room and board). At Nicholas' high school, a teacher advised him to put something in his portfolio that stands out from other applicants. “He wanted to do something artistic,” the teacher told the New York Times.
            According to the South Florida Fish and Wildlife Conservation Commission, however, the art student did something illegal: “The bottom line is this young man committed a felony by dumping the piano in the bay.” Lenience prevailed for the suburban teenager and even for his complicit parents.
            Nicholas is from an art-loving family. Back in December he and his father had moved the piano, an old movie prop (the father’s profession is movie staging), to their backyard dock. They planned for Nicholas to take it into the bay and make a music video. During a New Years party, however, drunken revelers set the piano on fire, which was fine with the family. They put it on the family boat and dumped it on the sand bar, set fire to it again, and took pictures of Nicholas playing the piano while it was aflame.
            In the end, the video did not work out. Nor did the family make plans to collect the piano in the weeks that followed, even as the mystery and publicity swelled. “It just became so magical, and took on such a powerful energy—this wonderment of how it got there,” said the mother of Nicholas. Nicholas finally divulged the family's role (by calling the Miami Herald) when other people began to claim credit for the magical piano, but also after an ocean salvager began claiming rights on the debris.
            We don’t know whether the event (a mystery resolved at the end of January) translated into something compelling for Nicholas’ art school portfolio, which is where the entire episode began. He certainly has a modicum of fame now. Miami Herald stories generated hundreds of online comments: How did the young man escape a felony? What were the parents thinking? And finally, “Hey, this is art” (and art in Miami), so give the boy credit.
            At art schools today, any candid faculty member will confirm that it always works: If you can “stand out,” you will get more attention. It is a consuming thought for many artists. Furthermore, if you can say your art faces censorship, then you have been especially successful. As Nicholas seemed to prove, if you can create a public mystery, that is even better. Some artists don’t have the temperament to stand out. They may lack the money to finance a grand gesture. Some are curtailed by a sense of proportion, especially regarding the law or social propriety. According to some art critics, this urge to attract attention for attention’s sake has often led to shallow, bombastic art. Nonetheless, it remains an important part of the artist tool kit. After the Miami episode—known affectionately as the “piano bar” affair—we may see more efforts by art teens to burn their way into art school.