Is it Tiffany or Robin's Egg blue?

When you say  Hermes orange, or Tiffany blue,  does Kapoor black come to mind? British artist Anish Kapoor has secured the exclusive right to use the high-tech color "Vantablack", a color developed for military purposes. The pigment is so dark that it absorbs 99.96 percent of light making anything coated with it nearly invisible. I heard that the former Soviet Union went to great lengths during the Cold War to discover the formula.


Kapoor is not the first artist to secure rights to a color.  Think Yves Klein. Did you know you are supposed to pay a licensing fee to the estate if you use that color (International Klein Blue)? And how would you ever know if you strayed into Yves Klein territory when for instance doing a painting of a swimming pool with a myriad of blues?

What do you think of an artist monopolizing a color? Should brand identity stand in the way of artistic expression? Will Kapoor aggressively pursue his rights and sue fellow artists?  Will you be arrested by painting with Kapoor Black?

And what if you are using it as a commentary on Kapoor, or a reference to the military, or the nature and presence of a painting with the absence of color? Shouldn't that all be covered under freedom of expression and merit legal protection?

Tom Sachs comes to mind with his use of safety orange. It informs our understanding of his work. I love that he's thought about orange.

I think we are at the beginning of a large conversation. What do you think pink?

COLOR. By Tom Sachs from Tom Sachs on Vimeo.

Illegal art #3

Here's an artwork where the author/artist used the legal system to create his work. In 1998, Kembrew McLeod trademarked the phrase "Freedom of Expression" and created a magazine with that title. He enlisted a friend, Brendan Love, to pose as the publisher of an imaginary punk rock magazine also called Freedom of Expression, whom he then pretended to sue. McLeod hired a lawyer and didn't let her in on the hoax. The lawyer sent a cease-and-desist letter to Love:

"We represent Kembrew McLeod of Sunderland, Massachusetts, the owner of the federally registered trademark, FREEDOM OF EXPRESSION ... Your company has been using the mark Freedom of Expression ... Such use creates a likelihood of confusion in the market and also creates a substantial risk of harm to the reputation and goodwill of our client. This letter, therefore, constitutes formal notice of your infringement of our client’s trademark rights and a demand that you refrain from all further use of Freedom of Expression."

Shortly thereafter, the Daily Hampshire Gazette ran an interview with McLeod. He played it straight, telling the paper, "I didn't go to the trouble, the expense and the time of trademarking Freedom of Expression just to have someone else come along and think they can use it whenever they want." Two years later, when McLeod asked to reprint the Gazette article in his book Owning Culture: Authorship, Ownership, and Intellectual Property Law. The paper denied him permission.



This recent ad campaign brings up another copyright query. Marilyn Minter on the left, new Lee ad on the right. You decide...

Illegal Art #2

Today copyright owners are likely to sue artists who appropriate their work, after all they now understand the full value of brands. In fact, Shepard Fairey has done his own share, suing people for using "Obey" attached to their artwork. The question becomes for artists not whether you can win but whether you can afford the lawsuit.

Quoted in New York Times article from 2003

"Legal worries convinced Diana Thorneycroft that she should pull several drawings from a recent exhibition in Winnipeg, Manitoba. Canadian law does not consider parody fair use. The pieces, now on display as 'Foul Play' in 'Illegal Art,' depict dolls of familiar characters like Mickey Mouse and Bart Simpson being bound or 'killed' by hanging or gunshot.

'I think my drawings are clearly dealing with parody,' Ms. Thorneycroft said. 'But you know — I mean, murdering Mickey Mouse, the people who work for Disney may not agree with that."

However there was a lawsuit that gave me hope. It was one between Tom Forsythe, a photographer and Mattel, relative to the series, "Food Chain Barbie." At the end of a decision where Forsythe prevailed, Forsythe's legal team asked for all legal costs to be paid by Mattel to send a message to corporate America that artists do have some rights in fair use, especially the one of parody. The firm Howard, Rice, Nemerovsky, Canady, Falk & Rabkin did pro bono legal work for Forsythe in excess of $1.5 million in defense of the case and Forsythe personally spent in excess of $200,000 for legal out of pocket costs. After a round of appeals, the District Court echoed the Ninth Circuit and ordered Mattel to pay all legal fees and expenses. That award of $1.8 million is on top of an award of $300,000 for the cost at appeal, with Mattel writing a check for $2.1 million.

Appropriate Appropriation?

An exhibition I saw recently at Cheim & Read hosts recent work by London-based artist Paul Morrison. Morrison is best known for boldly graphic landscape paintings, wall drawings, sculpture and animations. his work brought up some of the "Fairey Use" issues we've been discussing but is so beautiful I didn't care at all. His work incorporates found imagery culled from various pictorial genres and different time periods; early botanical illustrations, Northern Renaissance woodcuts, and even Disney cartoons (Oh Fairey...) I especially liked the way he uses scale both in the works and in the installation. He also had an elegant blue moulin video, simultaneously soothing and slightly menacing.

If Ideas and Facts are Not Copyrightable, how about Someone’s Face?

PART 4

According to the Copyright Office, “the nature of the thing depicted or the subject of the photograph . . . is not regarded as a copyrightable element.” The reason for this is that facts and ideas are not copyrightable.

A lawsuit was filed against Oprah Winfrey by two photographers who had authorization to take photos on the set of Oprah’s show. Oprah used several of the photographs in a book, and the photographers sued her. The court determined that the photographers owned the copyrights in the photos because they were independent contractors. Oprah and her production company then said they were joint owners of the copyrights in the photos because they contributed Oprah herself who is featured, Oprah’s facial expressions, clothing, and the look and feel of the television show. The court determined these were non-copyrightable elements and the photographers prevailed.

Mel Gibson appeared on the Jimmy Kimmel show that aired in some markets after the Academy Awards. While briefly discussing Gibson's DUI arrest where he spouted anti-semitic comments, Kimmel then led to a scripted Gibson quick discussion of whether he also called a female police officer "sugar tits." Gibson denied saying it, the two laughed about it, and then Gibson said he'd wished he'd actually coined the phrase. "I wish I could copyright it" Gibson said, Kimmel agreed. Continuing the Donald "you're fired" Trump tradition, will we now be repeatedly exposed to Mel "Sugar Tits" Gibson?

Perhaps this is a Waterloo where the famous defend themselves with the "Right of Publicity"? For example, Arnold Schwarzenegger sued the maker of political Bobblehead caricature dolls, for infringing his “right of publicity.” Schwarzenegger comes from the entertainment world rather than the political arena, and he knows the value of himself. What's the matter with the politicians? Don't they understand the value of every nickel, penny or 10th of a cent? Jimmy Carter gifted the makers his book in response to his Bobblehead, and Rudy Giuliani carried his around for show and tell. Will Obama be next? Or worse—the Obama "Chia Pet"? @!?#&#!?

Educate yourself! Here is a link to a very good article at NYFA and here are a few books I have found to be of great value relative to these issues. Just click on any of the books below and go directly to Amazon. To be continued in Part 5...



And if you really have to own the Chia Obama.
Chia Obama Handmade Decorative Planter












Parts of this blog excerpted from Front Page News

Warholize me! Obamicon me! Sue me!

Copyright and Fair Use PARTS 2 and 3




"Steal this blog," or rather "Sue this Blog," might be where we're going next in the continuing saga of Fair Use. Copyright infringement lawsuits directed at bloggers and other online publishers are on the rise. According to the New York Times, the number of suits rose more than 500% in 2007. These legal disputes are symptomatic of the ease of “sharing” and the Internet’s link economy. Many web sites post excerpts from time to time, including this one. At what point does excerpting from an article become illegal copying?

The courts have not provided much of an answer. In the United States, the copyright law provides a four-point definition of fair use, which takes into consideration the purpose (commercial vs. educational) and the substantiality of the excerpt.

As Mr. Ardia, whose Citizen Media Law Project is part of the Berkman Center at Harvard Law School said, “New modes of creation, reuse, mixing and mash-ups made possible by digital technologies and the Internet have made it even more clear that Congress’s attempt to define fair use is woefully inadequate.”

For now, Web sites are defining it themselves. Sites like Alley Insider and The Huffington Post are ad-supported businesses that filter the Web for readers, highlighting what they deem to be the most meaningful parts of newspaper articles and TV segments.

The Huffington Post, co-founded by the author and columnist Arianna Huffington, is perhaps the star of the excerpting debate. Ms. Huffington’s editors are especially adept at optimizing the site for search engine results, so that in a Google search, a Huffington Post summary may appear ahead of the original article.

Read the full article in today’s New York Times, it is our future.

See Yourself as Others Sue You




Adding to this is the current rage for portraits "in the style of" that you can create yourself. There are thousands of sites today where you can have your snaphot turned into a "Warhol" for $69.95 canvas wrapped and like they say in the commercials "sofa-sized. " Or perhaps you would prefer an original "Fairey" courtesy of Pasteboard Magazine. To be continued...

Copyright in the Grab and Go Era

Someone I know recently posted an album of photographs on Facebook to share. They had found them on the Facebook page of Joao Batista. They shared the album and it came up on my facebook page as "By Joao Batista." The problem was that whoever Joao Batista is, he was doing a disservice to the original artist/photographer by not posting an attribution of the photos he put in his album. The photos are by Peter Menzel and are contained in his book, Hungry Planet: What the World Eats.
I don't know Peter, I'm just a fellow artist who's thinking a lot about the ease of sharing with a digital copy and paste. I'm not against sharing, in fact with the ego of an artist, I'd like as many people as possible to see my work. What I do want; is to keep any and all of my rights, to make money if appropriate to do so, and to have full attribution whenever it's used.

We should all be using some form of the new Creative Commons copyright. It's easy to do, you just go to their website and fill out an online form which generates a piece of code you just cut and paste—see below:


www.susanandkurt.blogspot.com by Susan L Shaw is licensed under a Creative Commons Attribution-Noncommercial-Share Alike 3.0 United States License.
Based on a work at creativecommons.org.
Permissions beyond the scope of this license may be available at http://www.menzelphoto.com/books/hp.html.

FREE

Recently I went to the Neon Museum. It’s a work in progress and a good one too. Right now it’s a fenced junkyard of old neon that represents the history of Vegas as it went from bulbs to neon. It’s a pay museum although it is a “donation.” The oddest thing however is the photo release you have to sign. It basically says that if you want to use the photos you took that you have to negotiate a fee to use the pictures you took. Personal use is o.k. but does this blog constitute publication? Do your personal images on flickr? Since the museum receives tax-exempt status, shouldn’t it allow taxpayers access to exposure of its collection? Rights management has become a central headache for our generation.

Take the recent flap about pictures of the Eiffel Tower that Kurt found on Wilipedia. Images of the tower have long been in the public domain; however, in 2003 SNTE (Société nouvelle d'exploitation de la tour Eiffel) installed a new lighting display. The effect was to put any night-time image of the tower and its lighting display under copyright. As a result, it was no longer legal to publish contemporary photographs of the tower at night without permission in some countries. It is however free to take photos in the daytime because the tower was built before the copyright laws.

Policy does not supercede laws, and where does art come into this? If they want people to come to their museum, why not let them publicize the museum? There’s been a lot of controversy about the museum’s position. So…to highlight the problem, today’s photo was taken on a public street outside the locked fenced area of the museum, technically, that makes it FREE.