Given our increasingly frequent discussions of the concept of “FAIR USE” in the art world, we at Supertouch thought now was a good time to reprint (using the article’s creative commons license) “Fair Use it or Lose it…” one of our favorite pieces of writing on the subject. Written by MARJORIE HEINS and published on the website of nonprofit action agency FAIR (Fairness & Accuracy In Reporting), the piece is an erudite discussion of the copyright and trademark issues crucial to the increasingly central “remix” culture that is a driving force in modern art and creative endeavors. HAVE A READ:
FAIR USE IT OR LOSE IT
Copyright owners’ threats erode free expression
By Marjorie Heins, Extra! May/June 2006
Tom Forsythe is an artist with a mission. In 1997, he created “Food Chain Barbie,” photographs depicting the iconic doll interacting with various kitchen appliances. The results—“Malted Barbie” and “Barbie Enchiladas,” among others—were intended, Forsythe said, “to critique the objectification of women associated with Barbie.”
Barbie’s manufacturer, Mattel, sued Forsythe for copyright and trademark infringement. Eventually, a federal court ruled for the artist, finding that “Food Chain Barbie” was protected as a “fair use” under both copyright and trademark law. The court explained that there are great public benefits to allowing critique of cultural icons. Letting Forsythe use Barbie’s image encourages “the very creativity” that is at the heart of copyright law.
This was a success story for free expression, but it cost four years of bruising litigation. Most people threatened with suit cannot afford the risk, the cost and the stress. (Forsythe was helped by pro bono counsel recruited by the ACLU.) Often, they cave in to “cease-and-desist” letters or legal threats, even though they might have a legitimate fair use defense.
Fair use is an essential part of intellectual property (IP) law, which includes the law of copyright and trademark. It allows anyone to copy part—sometimes all—of a work without permission, for purposes such as commentary, criticism, news reporting and education. The copyright law lists four factors to be considered in evaluating a fair use claim: the purpose and character of the use; the nature of the copyrighted work; the amount and importance of what was copied; and the effect on the market for the copyrighted work. There are also fair use and First Amendment defenses in trademark law. Read More
THE MEDIUM IS THE MESSAGE:
SHEPARD FAIREY AND THE ART OF APPROPRIATIONAs underground art phenomenon SHEPARD FAIREY’s first major museum retrospective prepares to open at the INSTITUTE OF CONTEMPORARY ART/BOSTON on February 6th, we feel the need to address some of the vicious and unfounded rumors surrounding the originality of Shepard’s artwork that have been floated online in recent years. Though written by a variety of different detractors for a questionable array of reasons, the common thread binding them all—aside from a thinly masked veneer of obvious envy in most cases—is a nearly ubiquitous lack of understanding of the artist’s use of appropriated imagery in his work and the longstanding historical precedent for this mode of creative expression. Read More
A FEW THINGS I KNOW ABOUT PORNOGRAPHY by Peter Saville Pornography and Narrative There is something very mercenary about pornography. It's astonishingly to the point. The notions of narrative engagement don't really matter in serious pornography. Attempts at them are always inept. Actually, it's better to not bother. If I want to watch a film, I'll watch a film. I'm not looking to pornography for a narrative experience. Beginners tend to. But anyone with any intelligence can't really bear the ineptitude of the filmmaking.Read More