Putting the Fair Use Code to Work: Case Studies from Year One
Friday, February 5, 2016 Committee on Intellectual Property
104th Annual Conference, College Art Association, Marriott Wardman Park, Delaware Suite B, Washington, DC
Under my capacity as managing editor for the College Art Association, I live-tweeted a session at the 2016 CAA Annual Conference in Washington, DC. It was the first time I had attempted to write about an event as it was taking place. Sponsored by CAA’s Committee on Intellectual Property, the session addressed how the organization’s Code of Best Practices in Fair Use for the Visual Arts, published in February 2015, has been used by artists, publishers, and museum administrators.
The names of the speakers, their affiliations, and the titles of their presentations were:
Betty Leigh Hutcheson, Director of Publications, College Art Association, “Contract Changes at CAA”
Patricia J. Fidler, Publisher, Art and Architecture, Yale University Press, “New Fair Use Guidelines for Art and Architecture Books at Yale University Press”
Rebekah Modrak, Associate Professor, Stamps School of Art and Design, University of Michigan, “Re-Made Co.: Meeting Legal and Publishing Challenges with Help from CAA’s Code”
Joseph N. Newland, Director of Publishing, Menil Collection, Houston, “One Museum’s Fair Use Policy: Adapting CAA Guidelines for Internal Criteria”
Susan Higman Larsen, Director of Publishing and Collections Information, Detroit Institute of Arts, “Second Time Around: Remembering to Bring Fair Use into Play”
Patricia Aufderheide, University Professor, School of Communication, American University, “Looking Both Ways: Reviewing Year One and Projections for Year Two”
Peter Jaszi, Professor, Washington College of Law, American University, “Looking Both Ways: Reviewing Year One and Projections for Year Two”
The live tweets follow, in chronological order.
"Putting the Fair Use Code to Work: Case Studies from Year One" begins! #CAA2016#CAAfairuse
Jeff Koons discusses his Inflatables from the late 1970s (photograph by Christopher Howard)
Is it possible to be indifferent to Jeff Koons? For many years my attitude toward the artist’s work has been impassive and disinterested. It exists whether I like it or not and has some visual interest, but I’ve never cared enough to form an opinion beyond that. Among the most successful living artists, Koons is comparable to Jay Z or U2: a talented mainstream artist whose early output is considered groundbreaking but whose later works are noteworthy more for their high production values and their exorbitant, multimillion-dollar price tags than their aesthetic worth. Over the years Koons has managed to stay relevant, with critics and journalists dutifully covering his exhibitions and appearances, just as they would report on Bono’s activism and Hova’s exploits.
A retrospective covering Koons’s entire career, organized by Scott Rothkopf, sits in the Whitney Museum of American Art until October 19, the final exhibition at the museum’s Upper East Side location before a move to the Meatpacking District. The exhibition was among the reasons for tonight’s sold-out talk at the New School. Dressed in a navy suit, a pale-blue open-collared shirt, and black dress shoes, Koons delivered an hour-long, well rehearsed lecture in which he presented himself as an animated but never overbearing orator, using a variety of hand gestures, movements, and poses that enhanced his spoken words. At one point he even crouched down to greet an imaginary dog. Woof!
After thanking the Public Art Fund, which sponsored the talk as well as the sculpture Split-Rocker (2000), a large outdoor floral arrangement on view at Rockefeller Center during summer 2014, Koons talked about his upbringing and his understanding of and approach to public sculpture, the subject of this lecture. He first became aware of the genre through a childhood encounter with the statue of William Penn that stands atop Philadelphia’s City Hall building. Created by Alexander Calder’s grandfather, the work embodies, Koons said, a history of society’s values on a mystical scale. Art deals with issues of interior and exterior, he continued, that elicit emotional responses. Further, experience and emotion form the vocabulary of art, and to interact with public art in physical space is a “communal activity.”
William Penn stands on top of City Hall (photograph by G. Widman for the Greater Philadelphia Tourism Marketing Corporation)
Koons emphasized what he called the “unitative,” explained as something bigger than us but at the same time collectively shared. The York fairground in the artist’s Pennsylvanian hometown, founded ca. 1765, was the first fair in the United States, he said, and there he experienced games, visual stimulation, joy, pleasure, and terror—both as an individual and as a group with other fair goers. Fireworks, parade floats, and houses decorated with Christmas lights also inspire him, providing “excitement, awe, and wonder.” “Our governments,” Koons even said, “are a form of public sculpture.” If by this he means the socially engaged practice of argument and debate, with the elation of progress and success and the frustration of stagnation, then art is like not only politics but also science, business, religion, and myriad other things.
Koons’s vacations were also formative experiences. As a kid he and his family visited Dolphin Land or Dolphin World in Florida (perhaps he meant the Miami Seaquarium), where he internalized the relationships between humans and animals. These relationships are evident—in some way or another—in his Antiquity 3 painting, which depicts a woman riding an inflatable dolphin. Recalling the aquatic-theme-park performances of jumping dolphins and such, Koons applied abstract ideas about the surface of the water versus going underneath to sculpture. Indeed, surface and depth are the core—if not the most important—qualities of Koons’s art.
At this point Koons switched to autopilot, pulling ideas from the usual spiel he gives when discussing his own work, trotting out stock phrases about generosity, transcendence, perfection, communication, and sharing, like he most recently did on Charlie Rose and The Colbert Report. “As soon as things become public, there’s a sense of generosity,” Koons said. People share the transcendence created by art collectively, the artist explained, and there is no private experience. Deflating the importance of his artistic production, the artist said, “There’s not any art in that object,” which instead acts as a “transponder” for the art experience. Transponders, he noted, both send and receive. Later Koons said, “We don’t care about objects—we care about people.” I have no obligation to the object, he continued, but rather to the people and their trust. I wonder if he gives the same populist rap to the elite collectors who spend millions on his work.
Koons traced the beginnings of his involvement in outdoor, public sculpture. His first foray was the stainless-steel Kiepenkerl (1987), made for that year’s Skulptur Projekte Münster in West Germany. The hot metal accidentally bent during the casting process, damaging the work in several places. Since there wasn’t enough time to redo the piece, the artist faced a grave decision: either pull out of the exhibition or attempt a hurried fix. “I went with the radical plastic surgery,” Koons said cheerfully, giving the punch line to this story for the umpteenth time.
Jeff Koons’s Rabbit in the Macy’s Thanksgiving Day Parade in 2007 (photograph by Librado Romero for the New York Times)
Koons described several more public artworks from the past twenty years, expressing amazement that Macy’s included a gigantic version of his mirrored inflatable Rabbit for its Thanksgiving Day Parade in 2007. He also revealed that he had been looking at Baroque and Rococo art when conceiving the monumental Puppy (1992), a large floral arrangement in the shape of a dog that appeared outside Rockefeller Center in summer 2000 (among other sites); he wanted to put those historical styles into a piece of his own. Issues that Koons grappled with for Puppy included biology, ephemerality, symmetry/asymmetry, and internal/external. Ultimately—and this was the highlight of the talk—Koons described Puppy as “a piece about control,” the kind of control a person exercises or relinquishes in his or her life. “It’s whether you want to serve or be served,” he said. This commentary evoked not only the “greed is good” mantra from the 1980s, but also the exercises and abuses of power in any political or economic dictatorship —all frightening stuff, even threatening. Here the menacing qualities of Koons’s seemingly happy, carefree art bare its fangs.
Returning to formal and logistical issues, Koons professed that photographs of Split-Rocker typically show the piece in a pristine state, when it was first erected in early summer. Koons, however, intended the work to get “shaggy and chaotic” over time, which it had certainly done when I visited the work in mid-September. An unrealized outdoor work called Train, Koons explained, will feature a functioning, performing steam locomotive dangling from a crane. “It’s a metaphor for an individual” that huffs and puffs in a determined manner, he said, and the train experiences an “orgasmic moment” when it hits one hundred miles per hour. “To me, that’s William Penn,” he said, reiterating his themes of history, power, and the connection of an individual’s experience to something bigger.
Koons also returned to his biography, recalling the showroom of his father, who was an interior designer. The elder Koons had sold paintings by his young son in the store window, integrating them into arrangements of furniture and other household objects. “He gave me great confidence,” the artist said of his dad. Koons also gave a shout out to W. Bowdoin Davis Jr., his art-history professor at Maryland Institute College of Art in Baltimore, who revealed the many operations in play in art, such as psychology, religion, sociology, and symbolism.
Koons revealed his Balloon Venus sculpture (2008–12) as a hermaphroditic fertility object and announced that the Gazing Ball series (2013) is among his favorite bodies of work. Coincidentally it was at that moment when I noticed the artist’s intense blue eyes as he showed images of several Gazing Balls. With an image of his oversized sculpture Play-Doh (1994–2014) hovering onscreen, Koons told us “I’m trying to make works you can’t have any judgment about.” If you make judgments,” he decreed, “you’re limiting yourself.” He advised his critics to “Open yourself up and keep everything in play.”
The event organizers had collected written questions for Koons earlier in the lecture, and Nicholas Baume, director and chief curator of the Public Art Fund, read a selected few to the artist. Did Koons ever fear there was a time when he felt that his career was over, and what did he do? In his early years the artist admitted to going broke a couple times, leaving New York to live with his parents. But he came back to the city because, in his own words, “people want to be involved in dialogue. People depend on you.” I cannot imagine anyone taking that statement at face value.
When has technology not kept up with your artistic vision, asked another question. Koons claimed he prefers not to use new technology, which implied an apprehension of his work being tied to a particular method or process or—worse—appearing dated. Yet as the Friday symposium “The Koons Effect Part 2” determined and as Michelle Kuo noted in her catalogue essay, the artist uses complex software and highly intricate three-dimensional modeling to fabricate his recent work. Some even say that his level of technological perfection is higher than is needed by the aerospace industry and the military. Again, Koon’s modest words can be readily dismissed.
Jeff Koons on Jeff Koons (photograph by Christopher Howard)
Someone wanted to know how Koons can manage his studio workers and still be creative? Acknowledging his longtime studio manager Gary McCraw, who sat in the audience, the artist said he is always walking through the studio, watching and educating his loyal workers. How loyal are they? The average tenure of an assistant, he pointed out, is nine years. In the end, tight organization and long-term stability give the artist his creative freedom. Another Q&A dealt with the white skin color of the porcelain figures in Michael Jackson and Bubbles (1988). At the time, Koons replied, radical changes were happening to the performer’s body, and the Italian craftsman who fabricated the piece wanted to know “How am I supposed to make his nose?” when it was constantly changing in real life. Koons noted that porcelain was the “king’s material,” so he wanted Jackson to appear godlike, as in a pieta. Further, he said, the thick black outlines surrounding the singer and monkey’s eyes alluded to Egyptian art.
How would aliens from the future interpret your work? “They’d see a lot of the world, from our day-to-day lives,” Koons responded, pointing to the archetypal, universal qualities from our present historical moment embedded into his art. To what do you owe your fame and commercial success? “My family,” he replied, as if giving an Academy Award acceptance speech. When he was child, Koons remembered becoming ecstatic when his parents told him he could draw better than his older sister, whose life, he perceived at the time, had until then been superlative to his in every way. I wondered what that sister is doing now. What don’t critics get about your work? Koons repeated the transponder argument and boasted that negative people aren’t “prepared” for his art and are “insecure.” While seemingly arrogant, this response isn’t so atypical for an artist, though many would probably not state it so baldly. Koons does receive a healthy amount of negative criticism, but it’s rare for an artist to be so untroubled by it. Koons’s attitude may serve as a model for other artists. Or not.
I wish someone had asked about appropriation and copyright. Koons has been the subject of four lawsuits: he lost the first three on weak parody defenses but won the fourth with the transformation argument. The losing cases—Rogers v. Koons (1992), United Feature Syndicate v. Koons (1993), and Campbell v. Koons (1993)—each involved works from the Banality series: String of Puppies, Wild Boy and Puppy, and Ushering in Banality (all works 1988). The last, Blanch v. Koons (2006), focused on a photographer’s complaint that Koons used an image she took in a painting from his Easyfun-Ethereal series.
Toward the end of the lecture Koons returned again and again to his aphorisms on affirmation, acceptance, participation, and mutual support. It was hard for him to go off script—I doubt that he can—and the audience questions picked for him were relatively tame. In many ways Koons speaks like a politician, like Barack Obama on the presidential campaign trail. And like a politician Koons doesn’t offer truth or salvation but favorable, enthusiastic rhetoric about those things. He proposes a welcoming, populist frame of interpretation for his art, not to foreclose other people’s ideas but rather to make sure his intentions are being discussed. You can take his words at face value, scrutinize them, or dismiss his sermon, but you can’t deny that Koons is smartly shaping the reception of his work. After this talk I still felt indifferent toward his art but appreciated hearing about it from the source.
“Is it ethical for an artist to make work that sells?” was the first question asked of Randy Cohen, who responded by saying that terms like “sincerity” and “ethics” do not apply in aesthetic situations—you judge an artwork on its own merits. Drawing a distinction between creating good art and being a good (or bad) person, he argued that the racism and anti-Semitism of nineteenth-century authors shouldn’t discount the quality or importance of their novels. Cohen then asked the room, “Is it shameful to produce work that people enjoy?” If a person has an urge to make money, he mused, then art is a quirky field in which to earn a million.
Cohen, who wrote “The Ethicist” column for the New York Times from 1999 to 2011 and the book Be Good: How to Navigate the Ethics of Everything (2012), took a few questions from the conversation’s moderator, Sharon Louden, an artist and a faculty member at the New York Academy of Art, for a half hour before fielding queries from the audience, comprising mostly MFA students. An art-world outsider, Cohen drew from knowledge gained over his diverse career path, which includes writing for Late Night with David Letterman—he is usually credited as inventing the Top Ten List—during the 1980s and hosting a radio show, Person, Place, Thing, in which his guests, often celebrities, talk not about themselves but about something else that interests them.
Randy Cohen talks with Sharon Louden (photograph by Christopher Howard)
Cohen went into the talk cold, specifically requesting that Louden withhold the topics of discussion. He handled the questions extremely well, and his responses were refreshingly atypical from the usual chatter regarding business and education in the arts. Cohen decreed it unethical for professors to accept gifts from students, even on graduation day, because doing so may establish a dubious precedent, “a way of doing things,” he said, in which intentions and responses are unclear. No more apples for the teacher!
Can an artist sell work from his or her studio when represented by a gallery? Both artists and dealers have good arguments for and against the practice. Early in an artist’s career, dealers have power and can bully the artist, not unlike the music industry in the 1970s in which record companies took advantage of bands. These relationships concern power, Cohen said, not justice. But the right call usually comes down to what’s permissible according to the written agreement between both parties.
Presuming an artist and dealer agree to split the sale of artwork fifty-fifty, is it ethical for a dealer to sell a work originally priced at $10,000 for $15,000 and then pay the artist the expected $5,000 instead of the higher $7,500? Again, he said, it depends on the written agreement, he said, though I believe that he hinted at the artist receiving his or her equal share of the sale. Can an artist or dealer sell a work to one person for $10,000 and offer a similar work to another person for twice that amount? Cohen found no fault in variable pricing, as airlines practice it on a daily basis. A smart buyer will ask what a work like this typically sells for. But if a buyer agreed to the seller’s asking price, there’s no harm.
Balancing ethical obligations against legal responsibilities was an unexpected theme during the conversation, with the law often superseding ethical notions of right and wrong. For example, an artist sells a painting to Person A, and Person B wants the same work. Can the artist make an identical piece to sell to Person B? As an example, Cohen brought up recent litigation between the financier and collector Jonathan Sobel and the photographer William Eggleston, who sold one darkroom print of a limited edition to Sobel but later made a new edition of the same image at a larger size and printed it digitally. A judge dismissed the lawsuit in March 2013, according to the Art Newspaper, in favor of Eggleston. Apart from the court’s decision, it is “subjective and unmeasurable,” Cohen said, if the second work were similar, identical, or new. Does Balthus have a monopoly on cats and little girls, he speculated, referencing the recently opened exhibition at the Metropolitan Museum of Art. I thought of Claude Monet’s twenty-five paintings of Haystacks and the thirty-plus Rouen Cathedral series found in museum collections across the world.
Considering ethics in teaching, Cohen felt teachers have an obligation to tell students the truth, to deepen their understanding of a subject. Nevertheless, he has identified an ongoing tension between a solid education and giving good grades. Educators, he said, no longer fail students for fear of a lawsuits (presumably from parents). In art school, the “pernicious effect of grades” happens when a teacher all but requires his students to paint like him in order to pass the class. Prompted by Louden, Cohen talked about how teachers should provide realistic postgraduate expectations for students in MFA programs: “Here’s what art might offer when you get out,” he suggested they say. Further, teachers should address questions—in professional practices or more generally—that students did not know they needed to ask.
An audience member asked, “If you inhabit an utterly corrupt society,” do you have an obligation to be ethical? Cohen brought up a recent scandal at Stuyvesant High School, a top-notch public school in Manhattan with an accelerated college-prep curriculum, in which cheaters make it difficult for honest students to compete. When the stakes for Ivy League admission are high, he seemed to say, sometimes it’s okay to bend the rules.
An apple pie with a lattice upper crust (photograph by Dan Parsons and in the public domain)
Should critics collect art? Cohen emphatically said no, and they should also refrain from writing about artists who they’ve seen naked or who invited them for dinner at their house. Writing about friends in whatever capacity, he said, will yield a skewed or uncontrollable perception. While I agree that knowing an artist may influence a critic’s perspective, I scarcely believe that the effect is ethically detrimental to the writing. Often knowing an artist personally, as a friend or as an acquaintance, can produce unique insight valuable to viewers and readers—which may not be an ethical dilemma since art criticism can be highly subjective. Critics should nevertheless refrain from accepting gifts from artist friends, Cohen said, whether the gift is a $50 pie from the bakery or one lovingly made at home. No apples for teachers and no apple pies for critics? Rats! The perceived problem of writing about artist friends needs closer examination, as important distinctions can be made between the appearance of a conflict of interest and an actual conflict of interest.
Cohen’s approach to appropriation and copyright was less strict. “We have a narrow definition of plagiarism,” he said, “that protects commercial interests.” Yet it’s okay for him when the guitarist Eric Clapton lifts a lick from the blues man Robert Johnson. Whether it’s Led Zeppelin or Richard Prince, the practice of borrowing encourages artistic progress but often runs foul when the original creator fails to be credited or compensated. Certainly copyright laws in the United States are overburdened and outdated, but invoking the irresolutely defined word “transformative” as a cure-all solution obscures a complex, contentious issue. But tonight wasn’t the place for such a discussion.
Throughout the conversation Cohen referenced his unusual career path. He attended California Institute of Arts in the 1970s for electronic music composition and knew David Salle, Eric Fischl, and other members of the CalArts Mafia. After finishing the degree, he realized that he couldn’t think musically or with sound—though he is proud of the score he composed for a Prell Shampoo commercial. From music to comedy to writing, Cohen’s living consisted of “stumbling from thing to thing.” He has experienced failure but time was never wasted. “You’re not paying attention,” he said, if you’d live your life in the same way if you could do it all over again. Cohen’s life changed tremendously over the years, but for every big break he got, fifty other options were unsuccessful.
