I was just reading Marie Darrieussecq‘s Dispatch (sorry, no link) in the recent Art Review Journal–concerning the “censorship” of Larry Clark’s recent exhibition in Paris–and it reminded me of the recent skirmishes in the U.S. with restrictions on the exhibition and experiencing of artworks. There is of course the recent National Portrait Gallery fiasco over their removal of David Wojnarowicz’s video; Jeffrey Deitch’s change of mind and paint-over at the Los Angeles Museum of Contemporary Art (MoCA); and Ingrid Homberg’s violent ousting from the Gagosian Gallery, NY.

Darrieussecq asks: “Has the precautionary principle been taken too far?” Good question. But I like her ending thought better: “There’s a big difference between purposely choosing to visit an exhibition and being forced to see teenage bodies (particularly girls’) in advertising everywhere.”

The difference of course rests on agency: something we have pretty much forgotten about in both art and legislation. This is where law comes in. Not only should we ask why we depend so much on law, but better yet, why are artists so intent on speaking out against “censorship” in a random and arbitrary manner? Why not take another form of action against so-called “censorship”?

Why the over-blown hype concerning Wojnarowicz’s video but hardly a peep over Deitch’s destruction of Blu’s mural or the ousting of Homberg from a commercial Chelsea gallery? Perhaps it has to do with monetary and cultural capital. Who in Los Angeles would dare oppose Sir Deitch’s dictum? Or perhaps it has to do with the fact that it’s much easier to voice your opinion at a tired and true old enemy: conservatives and Republicans alike. Would it have made a difference if Deitch and Gagosian were die-hard Republican donors? I think so. If speech is speech, then it’s speech. And as far as I’m concerned the US Supreme Court has made it quite clear that protected speech–including art–deserves full First Amendment protection, regardless of the content and speaker. Of course, if what we’re arguing about are the few non-protected speech categories (obscenity, child pornography, fighting words, false advertisement, etc.), then I do believe that the battle terrain is quite clear. What is not evident–ironically–is the question of who’s going to fight the battle to liberate non-protected speech and garnish it with full First Amendment protection?

Furthermore, what has made art institutions so preoccupied with and fearful of dissent and inflammatory speech? Is it, as the Gagosian Gallery attendant proclaimed, about property and commerce: “This is private property…We’re here to sell art.” Certainly the National Portrait Gallery and Paris’ Musée d Art Moderne are not in the business of selling art. But they are in the business of securing the securing of public funds. At some point the public (ie- legislators) must act in its own best interest and not in that of a single individual or constituency. Hell, they are tax dollars after all.This brings to mind Justice Scalia’s scathing dictum from the NEA v. Finley case: “He who pays the piper calls the tune.” In other words, there may be a fundamental constitutional right to speech, but not a fundamental constitutional right to fund speech.

Who Needs an Art Critic: Law and Art Criticism, Part V

Shepard Fairey’s “Hope” poster has done more for art, culture, and law than simply bringing together the froth of disenfranchised young voters. In fact, Fairey’s “Hope” poster campaign has reminded us (similar to Koons) of the ongoing implicit prejudice by artists and art educators against certain types of creative individuals: in Fairey and Koons’ case, journalism and commercial photographers. This is more appalling if one realizes that this prejudice toward other traditionally non-art practices has been, in theory, subverted and critiqued by critical theorists and their progeny in both art schools and art institutions. Why is the photographer who took Obama’s picture less of an artist than Shepard Fairey, and why is Art Rogers, the photographer who took the picture of couple holding nine puppies, less of an artist than Jeff Koons. If art historians, art critics, and art professors are unwilling—perhaps for hypocritical reasons—to speak out about these issues then yes, we do, and we must, rely on the discourse and practice of law to do so.

As an example of someone who has both lost and profited from law, Jeff Koons was correctly informed by a federal court of the restrictions concerning the unlawful taking of someone else’s property (the Art Rogers nine-puppies image), yet also reminded by the same federal court fourteen-years later of laws’ allowance to lawfully take someone else’s work for his own creations (Andrea Blanch’s photo for Gucci). On a more recent note, Patrick Cariou’s copyright infringement lawsuit against Richard Prince may do what no art historian could do: force an interpretation of Prince’s work that would negate the continued argument by Prince and certain critics and historians that Prince’s work still falls neatly in line with appropriation and post-modernist strategies, thus effectually killing any lazy semiotic reading of cultural criticism inherent and/or intended by Prince. Why these legal issues are excluded from the interpretation and understanding of cultural production is unclear. Perhaps it is the old fashioned fear of law, judges, lawyers, and juries. Or perhaps it is the continued knee-jerk reaction to law (written or enunciated) driven by ignorance.

Law gives us what art has been afraid to grant and foster: liberty and freedom without fear of retribution. For example, the Supreme Court of the United States has honed a well-balanced and at times hyper-controversial reading of our First Amendment, particularly its free speech clause. As artists we cannot hypocritically raise the free speech cry when an artist spray paints a wall on private property, and yet simultaneously sob when for-profit and nonprofit corporations are granted free speech rights. This First Amendment area is ripe for testing and teasing out.

In their new book, Property Outlaws, law professors Eduardo Peñalver and Sonia Katyal write not about art, but about how the contestation and subversion of tangible and intangible property laws have in fact furthered our understanding and acceptance of property laws. In fact, it is precisely the citizenry’s displeasure (artists and art critics included) with certain laws that drive some of us to voice these distastes using the same medium that we find a nuisance and at times even abhor. That medium is of course law: law as medium, discourse, and practice.

The question remains: why are art and art criticism afraid to foster a contentious, robust, and vibrant space where ideas–political and nonpolitical alike–can be fought out without fear of ideological retribution? Is it that art is afraid to critique itself, in the truest sense of the word? Is art and art criticism afraid to uncover, and therefore reveal, that it is, and in fact has been, always aligned with the same “forces” it portended to abhor? It is clear that if art is unwilling to do so, it will be law as its own artistic practice that will be called upon to do so.

The End.

Who Needs an Art Critic: Law and Art Criticism, Part IV

The problem isn’t just a question of technique or form (brevity, resourcefulness, practicality, and precision), it is also about perspective and substance. In A Matter of Interpretation, Justice Scalia blames law schools for erroneously teaching that the U.S. Constitution is to be interpreted loosely and freely by judges at the expense of our legislative body.

Similarly, we can say that the blame for the staid and rotten methods of art interpretation and art criticism should be placed on our art schools and university art departments. As David Mamet and Michael Kinsley ask, why is everything always filtered through politics and why is everything always thought to be wrong or fucked up? Is the perpetuation of critical theory in educational and art institutions merely a ploy of tenure-track individuals to maintain their tenure-track careers? Is critical theory another excuse to publish the book PhD candidates have been working on for years for the simple joy of having it read by 100 other tenure-track individuals?

As with Justice Scalia, one must ask, are schools now so enamored of free, loose, and relational thinking that students are taught that they can, and may, do as they wish with a text, the U.S. Constitution, a painting, an installation, or paragraph? Perhaps art criticism should take a lesson from Scalia’s textualist form of interpretation, where the objective of statutory and constitutional interpretation is to establish the original meaning of the text, and where this meaning should be construed reasonably.

In other words, critics should not look for the intent of the artist; should not load the dice for or against a particular result; should not look to the artist’s history; and should not interpret what the text ought to mean in terms of the needs and goals of our present day society. Art criticism should be analogous to our separation of powers where the artists occupy the seat of the legislature; the critic and historian the role of judge; and the reader the position of the executive branch? Would that be so bad? Perhaps then we would see less of these PhDs running around for 7 to 10 years, from city to city, researching that ever-elusive dissertation entitled, “A Heideggarian Analysis on the Work of Robert Ryman Through the Post-Colonial Pre-Gendered Pez Dispenser.”

Should educational institutions function like our current government, self-anointed with the task of teaching values rather than analytical and technical skills? Why aren’t different artists and writers introduced to students? Why not Thomas Sowell, Justice Scalia, and visiting artist presentations from the Cato Institute? Why not teach art students and critics similarly to law students, where they are exposed to writers and thinkers of all kinds, left, center, right; libertarian, conservative, and liberal; textualist, evolutionary, and living? And why law? Because unlike the other intangible and self-aggrandizing theories, law is the only practical discourse that can simultaneously test and be tested.

III. How the Impact of Law on Cultural Production and Reception Provides a Fresh and Relevant Mode of Art Criticism

In every respect, law affects the manner in which art is produced and interpreted. It is thus shocking that art, as the area that was once at the forefront of education and cultural criticism, has neglected the one discourse that has limited art’s own production, interpretation, and distribution, and yet simultaneously enabled, empowered, and liberated it and visual artists.

In the last 20-years, the awareness by artists of the intellectual property and moral rights granted to them by law has not necessarily castrated their creative output so much as educated them about the methods in which they may exploit their own creative assets in order to create a space where they may produce their work with much more freedom and independence. Take for instance the recent Annie Liebovitz situation, where Liebovitz leveraged the copyrights to her past, present, and future photographs in order to obtain a multi-million dollar loan.

Copyright as a Constitutional right is being leveraged by artists to secure additional monetary assets by allocating monetary value on something that not only does not yet exist, but that in the future will also be intangible, meaning that as a non-rival economy, Leibovitz’s copyright assets do not deny any other person–artist or otherwise–their personal, property, civil or human right.

Continued tomorrow…

Who Needs an Art Critic: Law and Art Criticism, Part III

II. How Legal Writing and Interpretations Can Breathe Life Into Art Criticism

So, how to be a better writer? In order to proceed, I will break this section into the formal and the substantive. In his book, Making Your Case: The Art of Persuading Judges, Justice Antonin Scalia, of the U.S. Supreme Court, educates litigators on how to successfully write for and argue in-front of judges. Although Justice Scalia writes in order to educate a litigator in the art of persuading judges, his book contains many fine points that will help any writer polish the written word as well as oral argumentation. Justice Scalia’s ten main points necessary for clear, direct, engaging and economical writing can be essentialized as such:

1. Focus on the Actual Writing
   1. Value clarity above all other elements of style.
   2. Elegance, erudition, sophistication of expression must be sacrificed if they detract from clarity.
   3. The same word should be used to refer to a particular key concept.
   4. Footnotes: nothing important to your argument should appear in a footnote.
   5. Make your points in a blunt, straightforward manner.
2. Use Paragraphs Intelligently; Signpost Your Arguments
   1. Paragraph breaks are means of mapping your argument.
   2. The first sentences of paragraphs (your fifth-grade teacher called them “topic sentences”) are important in guiding your readers through your brief—telling them what next thought is about to be discussed.
   3. Writing five-sentence paragraphs is bad advice. Don’t assume your readers  come to your text by reading only Classic Comics.
3. Use What It Takes
   1. Guiding words are essential in helping the reader follow the progression of thought.
   2. Normally, the very best guiding words are monosyllabic conjunctions: and, but, nor, or, so and yet. There’s a myth abroad that you should never begin a sentence with a conjunction. But look at any species of reputable writing—whether it’s a good newspaper, journal, novel or nonfiction work—and you’re likely to find several sentences per page beginning with one of those little connectives.
   3. This one is key! To clarify abstract concepts, give examples.
4. Make It Interesting
   1. To say that your writing must be clear and brief is not to say that it must be dull
   2. Three simple ways to add interest to your writing are to enliven your word choices, mix up your sentence structures and vary your sentence lengths
   3. Remember that an occasional arrestingly short sentence can deliver real punch (“This wolf comes as a wolf.”).
   4. Banish jargon, hackneyed expressions and needless Latin.
   5. Write normal English
   6. Give the reader credit for having a brain—and show that you have one, too. Don’t leave your common sense at the door. If your essay repeatedly refers to the SECRETARY OF TRANSPORTATION and mentions no other secretary, it is silly to specify it parenthetically. No one will think that your later references to “the secretary” denote the SECRETARY OF DEFENSE, or perhaps your own secretary.
5. Appreciate the Importance of Oral Argument, and Know Your Objectives
   1. In descending order of importance, your objectives in oral argument are these:
      1. To answer any questions and satisfy any doubts that have arisen in the readers’ minds.
      2. To answer new and telling points raised in a reply.
      3. To call to the readers’ minds and reinforce the substantive points made in your brief.
      4. To demonstrate to the court, by the substance and manner of your presentation, that you are trustworthy, open and forthright.
      5. To demonstrate to the court, by the substance and manner of your presentation, that you have thought long and hard about this case and are familiar with all its details.
      6. To demonstrate to the court, mostly by the manner of your presentation, that you are likable and not mean-spirited.
6. Have Your Opener Down Pat
   1. Your opening should usually consist of, or at least contain, a brief outline of the subjects you intend to address
   2. Put your strongest point first
7. Be Cautious About Humor
8. Never Postpone An Answer
   1. Otherwise, you invite the judge to conclude (as most will) that you have no effective response. Just answer the question.
9. Learn How to Handle a Difficult Reader or Respondent
   1. Whatever else you do when confronted by a hostile and unreasonable judge, don’t reply in kind. Don’t become hostile yourself; don’t display anger, annoyance or impatience. Keep telling yourself that you owe it to your client—because you do.10.  Beware Invited Concessions
10. Never make concessions that you’re pressed to make on horseback, at oral argument.
11. Don’t give away or abandon the fundamental premise of your case, otherwise you’re cooperating in your own destruction.

Continued tomorrow…

Who Needs an Art Critic: Law and Art Criticism, Part II

Mamet continues to make insightful and on-point comparisons between John F. Kennedy and George W. Bush, and by foresight, a comparison of W. Bush and Obama (“Bush lied about his military service; Kennedy accepted a Pulitzer Prize for a book written by Ted Sorenson.”) Mamet questions his “hatred” for corporations, “the hatred of which, I found, was but a flip side of my hunger for those goods and services they provide and without which we could not live.” (This, incidentally, reminds me of the knee-jerk reactions on my Facebook page over the recent Supreme Court decision granting corporations free speech rights. The irony is not missed: people complaining about this “apocalyptic” decision as they type on Apple computers, Blackberrys, via Facebook while using web servers maintained by Microsoft.)  

any criticism worthy of not only being relevant and timely, but also unique and fresh? Let’s be honest. Many of us art world connoisseurs, when asked what we read for art criticism unapologetically respond with a rolling of the eyes. Complaints are followed with a disparaging comment or two about Artforum, Frieze, and October. So, what do we read for good art criticism? Or, perhaps the question is better framed, what constitutes good art criticism?

Last October, during a media law conference in London, the editor of a major newspaper proceeded to berate the New York Times. This time the critical attack came from The Guardian’s Editor-in-chief, Simon Kelner. Kelner stealthily and poignantly detailed why The Guardian had opted to follow The Huffington Post’s model (of hiring a wide and diverse range of writers) rather than that of the NY Times when it reassessed its enterprise, articulating that it is impossible to think that eight op-ed writers could ever know anything about everything that is going on around the world at any given moment. Kelner expressed his excitement for the confluence and amalgamation of voices, seeking instead multiple writers who could each write on one specific topic in both print and digital publications.  

Like many critical thinkers in this digital-cum-Twitter generation, I wonder what will happen to art criticism in an age of 140 characters, and in an age when bloggers have more impact than traditional media critics. You see, it’s not just about what you write and how long it is, it’s also about how you’re going to get my attention in 140 characters or less.  It’s also going to be about transparency and accountability. Bloggers, and traditional critics moving on to the blogosphere, don’t have the protection that traditional critics do.  

Take for instance Hal Foster and Artforum. I would be pleasantly surprised if any “right-wing” or conservative thinkers read this journal. If they do, what would be their most immediate response available to counter Foster’s? Write a letter to the editor, write a letter to Foster, writing their own article, their own book, organizing a conference? In the blogosphere, you have two main options: the comments section of the writer’s blog or your own blog.  

Additionally, it is now possible for political analysts, historians, economists, war historians, and legal scholars to make available your writings to a wider and more-informed public via the internet while simultaneously making available an avenue from which others may counter-attack. No longer will “critics,” art or otherwise, be able to get away with gross generalizations, naïve assumptions, and grandstanding without the possibility of facing embarrassing unveilings.  

There’s a reason people read Twitter and Facebook with much more gusto and engagement than they do the New York Times, Time Magazine, or any other news-oriented publication: with the former, readers are also writers, contributors, editors, copy-editors, fact-checkers, publishers, and distributors. They’re not passive consumers, they are aware that there are multitudes of sources who may not only know more about that specific subject matter, but more from a different and informed perspective, than any of the eight sedimented writers for the New York Times. In effect, this may be our “relational aesthetics” model as theorized by Bourriaud and Google’s very own William Patry. My recent Facebook experience countering uninformed and naive assumptions over the First Amendment is a perfect example, and an example of how law can invigorate an obscure, unintelligible, boring, and superfluous type of art criticism.

The following essay was originally titled Who Needs an Art Critic: Law and the Space of Writing, and written for the 2010 CAA Conference in Chicago, Ill. I am now making it available in its entirety, and will appear in five parts, beginning today. The five part series will continue tomorrow, Wednesday, and Thursday, and conclude on Friday. Enjoy.

Who Needs an Art Critic: Law and Art Criticism, Part I

Art criticism, as it stands, is devoid of any substance and content. As if that isn’t enough, art criticism suffers from a lack of relevance, freshness and, most importantly, timeliness. But it is art criticism’s own arrogant ignorance of law which has led it to its own demise, for the practice and theory of law has affected, and continues to affect, the production and reception of art.

This past January, The Atlantic‘s Michael Kinsley wrote about why people are turning from newsprint media to the internet. In his article, “Cut This Story!,” Kinsley particularly bashed the New York Times, and although his criticism was aimed at newspapers in general, his thoughts are apropos to this panel. In a nutshell, Kinsley’s sharp critique confronts not only the fact that newspapers like the New York Times are politically biased, but also that this political bias is but one factor in making news articles lengthy and wordy—needlessly so. Kinsley points out that the other factor in making print publications near-obsolete is the fact that writers and journalists speak at length about everything but the actual story; newspaper articles are too long, yet internet news articles get to the point.

Kinsley notes that once upon a time this fluff was considered “an advance over dry news reporting: don’t just tell the story; tell the reader what it means.” Unfortunately, providing “context” has become an invitation to provide the lowest form of hype, “horse-race hype,” which diminishes the story rather than enhancing it. As if this isn’t bad enough, adds Kinsley, “everything is filtered through politics.” Art critics fall well within this category. Point-in-fact, Hal Foster.

Last December’s Artforum invited “a broad spectrum of artists, critics, and curators to revisit the year in art,” to contribute thoughts about art exhibitions that had been profound to the writer and thus that should be profound to the reader (otherwise why would anyone care what’s profound to Artforum writers). I note that I don’t pick on this particular journal for a reason other than convenience. Artforum also asked art historian and critic Hal Foster to reflect on the decade that was. I’ll apply a bit of Kinsley and note that Foster spends two paragraphs (338 words) pontificating about the evils of Bush and Blair, Reagan and Thatcher, while sprinkling these two paragraphs with the usual theory suspects, Schmitt, Benjamin, and Agamben, before he first mentions anything remotely related to art (and at this point it’s of course Clement Greenberg). It’s pretty clear to me that if you’re reading Artforum you not only have $10 to spend on die-hard art advertising, you’re also already well-aware that (a) THERE’S AN UNPOPULAR WAR; (b) that most readers of Artforum agree and would whole-heartedly confirm that there was a “stolen presidential election.”; (c) that the last decade “targeted” the “most vulnerable” individuals in our society, the underclass, gays and lesbians, and immigrants; and (d) that you’ve already read, or at least been indoctrinated with, the writings of Schmitt, Benjamin, Agamben, and Greenberg.

It only gets better.

Artforum also searched for a token of political correctness, and found it in Okwui Enwezor. In presenting his “top ten highlights” of 2009, Enwezor willingly obliged. To no one’s surprise (at least certainly not mine), Enwezor highlights the election of the U.S.’s first black president peppered with a bit more Agamben; the “singularity and radicality” of Michael Jackson (although I believe we can agree that it was unclear if he died black or white); the “refighting” of Reagan’s revanchist culture wars, exemplified by the arrest of Harvard Professor Henry Louis Gates and the nomination of our first Latina Supreme Court Justice, Sonia Sotomayor; and of course a nod to the politically correct way to exhibit African art (by Foundation Beyeler, Basel).

Meanwhile, writing for the Village Voice in March of 2008, David Mamet explained why he’s “no longer a brain-dead liberal.” Quoting John Maynard Keynes, Mamet explains, “When the facts change, I change my opinion. What do you do, sir?” In this article, Mamet explains the he was a child of the ‘60s, and thus took on a liberal view for decades, accepting as an article of faith that government is corrupt, that business is exploitative, and that people are generally good at heart. However, he notes that that these ingrained precepts had become “increasingly impracticable prejudices” because he no longer applied them in his life. “No,” Mamet declares, contrary to popular liberal belief, everything is not always wrong. People are not genuinely good at heart. In fact, given the right amount of stress, he notes, they can certainly behave like swine. So how does one counter these pigs? The U.S. Constitution Mamet answers, “[f]or the Constitution, [written by men with some experience of actual government], rather than suggesting that all behave in a godlike manner, recognizes, to the contrary, that people are swine and will take any opportunity to subvert any agreement in order to pursue what they consider to be their proper interest.” (One may note that Mamet’s keen insights on the U.S. Constitution mirror his infatuation with law via film and stage set, as seen in Oleanna, Homicide, House of Games, American Buffalo, and of course his most recent production, Race.)

Continued tomorrow!

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I’ve been thinking about whether or not artistic production is headed into a “permission-based” or “license-based” practice; one which would somehow undermine and increase the cost of artistic production.

Last night, while reading Rebecca Tushnet’s blog entry concerning journalism, the internet, and permission culture, a few thoughts concerning the perceived current threat by copyright owners against creative individuals (artists, photographers, filmmakers, musicians, etc) came to mind. This perceived threat is guised as encompassing (and coming into being as) permission-based and license-based structures which artists would have to abide by in order to produce art works and other creative projects. This fear would be true only if artists continue to give up on the challenges posed by creativity and gave in to facile and lazy intellectual hyperbole. Why then is this threat being promulgated, and by whom?

The spectral fear of this sanctioning system of artistic production comes from an ignorance of two factors necessary to the valuation of art and artists. Those two factors are creativity and originality. Creativity has become synonymous with appropriation, while art has surprisingly bought into the academic belief in the death of originality. The prevailing perception now is that “everything has been done before,” therefore there is no need to even attempt to construe one’s own idea, much less develop a significant and intelligent body of work stemming from years of research and studio-time. Under this rubric, one can only be creative by copying or arrogantly assuming that one can do better than, or make the same statement as, a previous artist in a much better “way.” There’s not much policing of this unfortunate production system, particularly because the population toward which this type of work is being targeted to is of the same mentality and of similar low-expectations. This has nothing to do with education. Professionals and intellectuals of all kinds help to reinforce this Pez dispenser mentality by encouraging the perpetuation and reproduction of popular and immediately accessible art (aka- eye candy).

This threat comes from four entities: romantic artists; law professors; art lawyers; and art education. Romantic artists are those artists which still believe in the age-old notion of the artist as ward of the state, deriving her livelihood from tax-dollars distributed by federal and state governments. Certain law professors expound theoretical ideas about creativity and copyright without having any relation to real legal and artistic practices. Certain art lawyers champion the “testing” of the fair use doctrine and the free-play by “appropriation” artists because they have a financial interest in causing dissent and conflict among creative individuals (in case some have not figured it out, law is an adversarial process that can pay quite handsomely). Art education institutions are also to blame, primarily for not analyzing tired aesthetic and theoretical models taught in undergraduate and graduate art programs. This problem is heightened when one stops to think that when the mandatory Walter Benjaminian “death of the aura” essay is distributed to young artists to read, it is distributed to them by a visual artist who at many times has no true understanding of the German language, let alone German history. Add to this the renewed reinforcement of the old division of labor between artists and non-artists, granting artists a higher status over non-artistic works produced by photographers, monument sculptors, or crafts people.

The ideological effect of lawyers on artists is not obvious. Yet, when artists read certain legal theorists and practitioners who expound a “let culture be free” mentality, a similar and erroneous thought process happens. Artists begin to parrot certain thought patterns and ideas not only unfamiliar to them but, more importantly, having little if any connection with real life and practice.

Lawyers cannot be blamed for perpetuating the “everything has been done before” mentality. Every law student remembers that dreaded and ridiculous first-year legal writing course where every law student is taught to write a client letter, brief, and memorandum in a manner identical to every other law student. This first year of law school is reinforced upon entering the legal profession. “There’s no need to reinvent the wheel” is a common expression heard in law firms and law offices. In his book, The Little Book of Plagiarism, Judge Richard Posner of the Seventh Circuit Court of Appeals agrees, “[L]ittle value is ascribed to judicial originality–sometimes it is actually disapproved, on the grounds that it tends to destabilize law.” And then followed by this gem, “Law professors, too, are less than scrupulous about acknowledging the provenance of their ideas, because originality is not much prized by law professors either[.]” If judicial opinions, legal briefs, and court documents could be copyrighted, one wonders if legal professionals would have a different viewpoint concerning a“free culture” society.

Most fictional writing aside, writing in general lacks the creative factor needed in most visual art. This is perhaps why lawyers and law professors are unable to allocate importance and value to visual art production: they are unable to identify with the emotional trauma visual artists encounter every time they face a blank canvas, an empty room, or the framing of a camera viewfinder. Until romantic artists, lawyers, and legal theorists acknowledge the uniqueness and idiosyncrasy of visual art making, their belief in “free culture” will only propel the bankruptcy of creativity.

The last few years have raised important copyright issues and concerns for artists. There are three main factors which have impacted–and will continue to impact–how visual artists relate to each other, to art institutions, and to other intellectual property right holders when it concerns issues of copyright.

The first factor is our current economic recession. The recession has forced artists to seek out any and all monies owed to them regardless of amount, and many times, regardless of the professional repercussions they may engender. For example, previous to the recession, artists were hesitant to take legal action against any gallery or art collector, regardless of the monies owed, for fear of professional and artistic suicide. In other words, artists were willing to take cents to the dollar on art works sold, as well as wait months, and sometimes years, for full payment. The current financial recession has permanently impacted not only job prospects for individuals (including artists), but also drastically limited the availability of public funds for artistic projects. Furthermore, and going to the historic financial viability structure of artists, teaching jobs in academia have been reduced–and will continue to be reduced–at an unprecedented rate. How then do artists survive?

The second factor, education, is perhaps the most crucial. Visual artists are becoming aware of not only their legal rights, but more so artists are becoming educated as to the proprietary nature and value of their artistic projects. In other words, artists are realizing that their art projects may in fact be protected by intellectual property, but also, that their art projects can be leveraged like any other property right.

Third, visual artists who were not aware of the nature of intellectual property rights are becoming aware of them thanks to a very unpleasant experience, litigation. More and more, artists, other individuals, and corporations are suing artists — many times unjustly so — in order to protect not only their intellectual property (copyrights and trademarks), but also as a means of establishing a pro-property legal interpretation of copyright and trademark laws.

The education factor is extremely important and, in fact, ties in to the economic factor. Although a corporation must legally assess the nature of its assets and the property rights it may own, visual artists have historically not done so. Visual artists’ unawareness of the property and intellectual property rights to their artwork is due to three main factors. One, reluctance to seek legal representation and counsel as a means to obtain certain goals (here, distrust of lawyers and the judicial system come into play); two, visual artists lack financial means to obtain counsel and/or legal information and, three, the difficulty and impracticality in accessing legal information via physical libraries and/or educational institutions.

But this is changing. For one, more lawyers are entering the legal profession possessing an artistic background. This is paramount because artists are more likely to feel at ease with lawyers who understand the nature of their work as well as the intricacies and difficulties in conceptualizing and materializing the art work. Two, because of legal organizations like Volunteer Lawyers for the Arts, artists are now able to obtain pro bono representation, aided in large part by attorneys willing to do pro bono legal work. Third, the Internet, websites, blogging, Facebook, and Twitter, have had the biggest impact in educating artists. Where as previously an artist may not have known about a legal doctrine called Copyright, where to look for such information, or organizations and institutions that educate the general public in legal issues affecting artists, artists are now able to locate introductory information on law via the Internet. Simultaneously, places like VLA, the Stanford Fair Use Project, and the Berkman Center for Internet & Society can make available their information on copyright as well as classes and workshops on legal issues pertinent to artists. Lastly, I have noticed that many art schools and university/college art departments are increasing their students’ exposure to law and legal issues, in both a theoretical and practical sense. This is great news.

The factors mentioned above are crucial to understanding why copyright litigation has increased in the U.S. in the last few years. These factors also help us foresee how copyright issues and copyright litigation will continue to evolve (and increase) in the coming years. I also believe that the factors above are indicative of how artists are beginning to see their practices as inter-related to common business practices, perhaps better phrased as entrepreneurial practices. In other words, artists are realizing that in order to survive, they will have to depend more on their own financial means and their own artistic assets.

"Good Law is the Best Art"

Clancco has printed 50 limited-edition posters, Good Law is the Best Art, based on Andy Warhol’s now-famous quote, “Making money is art and working is art and good business is the best art.”

These limited-edition posters are for sale, with all profits after shipping costs going to UNICEF. UNICEF Promises that 100% of donated money will go to saving children’s lives in Haiti. Although the earthquake happened on January 12th, there is still much need for donations of all kinds to help Haiti rebuild. The AP reports:

The world still can’t get enough food and water to the hungry and thirsty one week after an earthquake shattered Haiti’s capital. The airport remains a bottleneck, the port is a shambles. The Haitian government is invisible, nobody has taken firm charge, and the police have largely given up.

We’re putting up the artwork; you help children in Haiti get food, water, medicine and clothing while getting a limited-edition Clancco poster.

Each poster is $20.00 (USD), and measure 19″ x 25″ on 110lb white paper. Clancco is also donating the cost of mailing tubes. If you’d like to buy a poster, please send a check to:

Sergio Munoz Sarmiento
1 East 53rd Street, 6th Floor
New York, NY 10022

Please include the following information:

1. Name / City / Country
2. Mailing address
3. Number of posters requested
4. If you would like your name included in our donation letter to UNICEF. With consent, all donor names will also be listed on Clancco.com. Those not wishing to have their names listed will be listed as “Anonymous.” These posters make great gifts, so you may also buy a poster in behalf of someone else. If so, please indicate name of recipient and mailing address.

If you’d like me to reserve one for you, e-mail me at sergio_sarmiento@clancco.com

Please feel free to forward to friends and colleagues, post on Twitter and Facebook.