Here's a link to an article in the New York Times about appropriation and fair use in the visual arts in a digital age.  The artist, Richard Prince, lost the case in Federal District Court but is appealing.


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Comment by ken coleman on April 9, 2012 at 10:29am

Thanks for another take on what seems to be a complicated issue, Jeff.

The agency phrase, "where the primary value of such transformed or derivative work is not recognizable as the Content" is pretty much what I meant by "anonymous." Their way sounds better.

Comment by Jeff Roberts on April 9, 2012 at 9:52am

I sometimes use stock photo agencies when I need a specific image type and can't take my own pictures. I pay for these licenses, but the licenses still come with prohibitions. One of the Permitted Uses has always made me feel a bit more comofrtable about appropriating images as it is coming from an agency whose business it is to make money from images.  See the bold section below from the License Agreement:


Permitted Standard License Uses

(a) You may only use the Content for those advertising, promotional and other specified purposes which are Permitted Uses (as defined below). For clarity, you may not use the Content in products for resale, license or other distribution, unless (i) the proposed use is allowable under an Extended License which is available for the Content; or

(ii) if the original Content has been fundamentally modified or transformed sufficiently that it constitutes an original work entitling the author or artist to copyright protection under applicable law, and where the primary value of such transformed or derivative work is not recognizable as the Content


nor is the Content capable of being downloaded, extracted or accessed by a third party as a stand-alone file (satisfaction of these conditions will constitute the work as a “Permitted Derivative Work” for the purposes of this Agreement).

Comment by ken coleman on April 8, 2012 at 3:28pm

Thanks, Todd. Interesting for sure.

I'll have to listen again but I think they glossed over some important ideas. Like when the artist said something like she appropriated only the sun from the Flicker images so the amount she used was so small that it fell under "fair use."  Everything else I've read says that there is no magic percent that qualifies something acceptable under fair use.  I suspect it has more to do with the appropriated image being such that it becomes anonymous. I also think the "impenetrable market" defense was a little lame but I'm not familiar with the Koons case. Is that the only reason he lost?

This case and the ideas involved will be interesting to follow.  Thanks for posting the up-date.

Comment by Todd Bartel on April 8, 2012 at 1:44pm

Studio 360 addressed the Patrick Cariou/Richard Prince Case in a recent radio broadcast:

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Some important points about such cases and  "Showing damages" are very informative.

Comment by ken coleman on March 14, 2012 at 11:26am

Just read the NY Times review. Hyde's perspective looks very interesting. Thanks, Todd.

Comment by Todd Bartel on March 13, 2012 at 7:40am

Lewis Hyde has a book out that touches upon these issues too I have just learned. Hyde's many contributions to what art is, and what it does to and for culture are essential reads. Here is a link to a NY Times review of his recent publication, Common as Air—Revolution, Art and Ownership:

Comment by ken coleman on March 5, 2012 at 2:51am

Never occurred to me that such a thing exists but it makes perfect sense. Thanks for the link, Todd. I've added it to my copyright folder.

Comment by Todd Bartel on March 4, 2012 at 4:53pm

Another piece of the pie for fair use: Orphaned Works.


Here is a general link:

Comment by ken coleman on January 9, 2012 at 12:38pm

First of all, Mark, don't stop making your work.

Yes, the whole thing is pretty crazy. Much of the work that we do is both derivative and transformative. I wish there were some clear-cut answers.

I can see for you and some of your work that the issue might be even more perplexing in that you use images of celebrities. The celectrities themselves are in the public eye and most likely are fair game, but then whose image is it in the first place? How does your right of expression play out against protecting the work of another artist/journalist/whatever.  That's why I think it will be very interesting to see if the Prince case really goes to appeal and, if so, what happens there.

Wish I had more comforting words.




Comment by Todd Bartel on January 5, 2012 at 5:57pm

Agreed. I'm of the mind that it's a snowball that is invariably gathering momentum and mass. I have always found it curious that in the music and literary worlds we have such elaborate systems that work, regarding issues of plagiarism, pirating and royalties etc. Somehow between realtime creative process, and footnoting we've got it pretty well figured out. But when it comes to visual references, appropriation, pluralism, and collage practices, it gets really cumbersome and way too complicated. Sure we can all get in a habit of crediting each and every source, but many of the things we collage artists gravitate toward, collect and use come to us recycled, disconnected, and nameless! It would be impossible to footnote every element used!


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