Fair Use: Information Piracy and Creative Commons in Contemporary Art and Design

Mali Anderson

An artist friend of mine had a job interview with a government agency. When asked if he had any illegal activity in his life, he confidently denied. Yet the next question gave my law abiding friend pause, was he certain there were no illegal images, files or music on his laptop?

As connoisseurs of media and culture it is increasingly difficult to know the source of all the content that enters our lives, iPods and hard drives. In fact, many people don’t question the source, if it is legal or not, and are only concerned with accessing the information, entertainment or data. The portal of information once policed by publishers, television channels, and entertainment executives is wide open. Individuals are now the gatekeepers, and as we link, post and share content, the concept of ownership is lost in the transfer.

What impact is this shift having on the arts?

Bea Correa, FAKEWEAR #3, fashion bag 2004

Fair Use, an upcoming show at Columbia College, will feature artwork that addresses section 107 of the Copyright Act, the fair use doctrine. This section lets users of existing work know that several elements are considered when determining if a copyright infringement has taken place. Factors include the educational or commercial nature of the work, the character of the work, and the amount of the work used and the impact it will have on the value of the original work.

A copyright allows creators a limited time in which they are granted exclusive copying rights, allowing the originator to capitalize on ‘cost of expression,’ the knowledge, time, energy and research creating the work. Since the ‘cost of production,’ burning a CD, scanning, and distributing is cheap by comparison.

Guy Ben-Ner, Stealing Beauty, still from single channel video, 2007

Thick with appropriation postmodern artwork is inter-meshed with utilizing existing imagery both from other artists and popular culture, a tradition that artists have melded seamlessly into creative expressions such as digital sampling and digital montage. Mining existing art to produce a piece is deep-rooted in art history and being copied can be a source of pride for many artists.

“Art’s transgressions against the legal regimes are more or less acceptable in the art world and art history, because they are innocuous to the realm of mass culture. The resulting situation becomes one in which appropriation art is curiously granted wide license in its otherwise illegal use of protected material, as compared to other systems of cultural production, such as music and cinema,” says Brandon Alvendia, curator of Fair Use. “Copying in contemporary art status quo.”

Yet, legally, copyright law can still trump this largely accepted cultural opinion.

Pratchaya Phintong, No Patents On Ideas, light sensitive print, 2005

This arose recently in artist Shepard Fairey’s use of an AP photograph for his iconic image of Barack Obama, a legal dispute reminiscent of Jeff Koons’s “String of Puppies” case over two decades ago. In both instances the artist used the composition of a photograph without supplying credit or payment to the photographer who captured the image. Fairey used an image found online as the base for his design. Koons had a postcard developed into a sculpture. The photographers wanted payment for the ‘cost of expression,’ a request that both Fairey and Koons fought. Koons lost in court and Fairey eventually admitted wrongdoing.

It is interesting that after 20 years, in which time the Internet has become ubiquitous and free exchange is celebrated in artistic communities, that a similar battle hits the headlines. Was it unfair of the artists to deny the value of that photographer’s skill? Or should the photographer take their work being sourced as flattery, ignoring the income generated once the image is released into the business of art?

“Fair use defenses exist along a spectrum and the line between fair use and violation is very nuanced. Individuals who use copyrighted music in their YouTube uploads will find their videos muted, though copyright holders have the option to let the users keep the song if YouTube places ads for the music on the video’s page. YouTube and copyright holders here are re-appropriating the video for the purposes of advertising,” continues Alvendia.

Murky, to say the least, the debates are certain to continue. As the digital world has grown, corporate interests have been wrestling to contain a tool that is built on free exchange. In some cases, businesses are moving away from copyrights and toward contracts and licenses, legal agreements without expiration dates or international restrictions.

Siebren Versteeg, New York Windows, Internet connected computer program output to 50" plasma screen, infrared touch frame, 2008

Copyright, and an individual’s role in creative exchange, is altering its meaning and influence. As consumers, and producers, we need to consider what kind of exchange we want to be involved in. Do we want open access? Are we prepared to accept creative common licensing and resist the temptation of commerce? While deliberating, remember that access isn’t the same as free, even if you aren’t interviewing with the government.

Fair Use: Information Piracy and Creative Commons in Contemporary Art and Design, opens March 1 in the Glass Curtain Gallery of Columbia College. The exhibition will run through April 30 with a reception on March 11.