MobyLives has extended the discussion Andy Baio started on his project Kind of Bloop, which I wrote about for The Rumpus on Saturday. MobyLives makes a good point when talking about one of Baio’s examples, that of the artist Jeff Koons, who won a copyright infringement suit in 2006 for his appropriation of fashion photographs. They point out that Koons lost a similar lawsuit in 1996 for a sculpture he made based on a photograph.
But here’s the thing I take away most from this new information: the fact that Koons lost the 1996 lawsuit is evidence that copyright law is enforced irregularly at best, and might be irretrievably broken. Seriously, go look at the example and then argue that the sculpture isn’t transformative. If you want to know why I describe myself as a fair use anarchist, it’s because of examples like these.
One response
Two other readings of the Koons cycle as opposed to your “copyright is enforced irregularly at best” view:
1. The equally cynical: Koons evolved into a much, much better defendant by the second lawsuit. He knew to talk about the parody angle, which was the more significant test than general “transformation” at the time,” from the get go. He didn’t tear off the copyright notice from the second work as he did from the first. He was a celebrated artist rather than still something of an upstart. The different results in similar, though importantly still distinct, cases represent differences in lawyering and luck. It’s not that copyright’s irregular; it’s that its regularity is largely driven by money and the legal skill it can buy.
2. The optimistic: The big internet development in 1996, the time of Koons’ first decision, was AOL deciding to sell unlimited access for $20 rather than bill its users hourly. The demand basically knocked AOL offline and killed what most people saw as the internet for a bit. By 2006, we were in Web 2.0 territory. User-generated content wasn’t just a business model, it was a remixing way of life. Fair use defenses weren’t just protecting defendants’ free speech; they were setting up a whole new culture and source of both inspiration and income for creative America. The different results in similar, though importantly still distinct, cases represent an evolution in copyright law, not an irregularity.
In your view that the law is largely chaotic, anarchy makes sense as a response. In my first reading, it makes sense to promote pro bono groups and work within the system to drive the results we want. Koons’ second win may have been dependent on his status, but it benefits a lot of people who want to raise fair use defenses. In my second reading, there’s still a need for groups and individuals to drive the law to keep up with technology, but there’s also some space to recognize that, pretty amazingly, things are getting better.
A final reading is the judicially consistent one, which I think makes some sense as well: when Koons found a postcard he liked, tore off the copyright notice, and sent it to his German workers with orders to make the sculptural copy more and more exact in order to tweak middle America, he actually did violate the photographer’s copyright. When he worked a piece of an advertisement into a much larger work in order to parody the role of sex and food (if I remember right) in advertising, including in his source, he had a more legitimate fair use defense.
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