Install Theme

de vos devine

art, copyright, creativity



Earlier today, I gave a short talk on museum photography policies. The image above, taken on Museum Selfie Day (01.22.2014), closed my deck. Due to time constraints, we couldn’t talk about Jay-Z’s selfie, which isn’t a selfie at all, and its meaning. It may have seemed like a humorous add-on (or, perhaps, a failed attempt at humor) when I intended to treat it quite seriously.

The caption on Jay-Z’s Instagram page read: “I’m the new Jean-Michel, surrounded by Warhol, my whole team ball.” The rapper sits in front of Andy Warhol’s portrait, on the same piece of furniture (a Factory sofa), in nearly the same physical position. Both images could read as self-portraits, even though it is highly unlikely that either man created his own image, if by “image” I mean the specific photograph. Yet, if I use “image” to mean “persona,” each man did create his image. These photographs, separately and together, demonstrate the self-determination of Andrew Warhola and Shawn Carter.

One might assume that the image argues for an expanded definition of appropriation art to include hip hop music. Ta-Nehisi Coates covered that in 2010. In 2014, it’s about more than what is or isn’t “art.” Neither is it about Jay-Z’s collection. Jay-Z’s Pace Gallery performance opened a new chapter in his story of self-determination: I am not a mere collector of art, I am a creator on par with Warhol, Basquiat, Abramovic. 

Jay-Z’s connection with Warhol as a cultural impresario is apt. Yet, I think the power of the comparison is driven not by their similarities as artists, but as collectors - of art, experiences, controversies and people. Someone else took Jay-Z’s picture, yet it was perceived as self-generated. Thinking about the mechanics of this image, this selfie that isn’t a selfie, reminds me that Jay-Z, like Warhol, needs a massive, unseen network of influence to construct his image. 

I want to see the whole network. Maybe it’s time for a Jay-Z Timeweb?

Kind of Screwed -

This is old (2011), but new to me, and really fun reading. Parties to settlements rarely describe their experiences (because they are commonly bound to silence). Andy Baio’s description of his settlement with Jay Maisel is an unusually detailed and pleasantly anger-free account of a copyright infringement claim and settlement.

A bill that that would bring droit de suite, or artist resale rights, to the US is due to be introduced today in Congress and includes a number of changes responding to critics’ concerns with the proposed law, as well as a snappy new name. The American Royalties Too Act (Art for short) recommends that artists should receive a flat 5% of the resale price for works sold at auction for more than $5,000…reducing the royalty rate [in the 2011 proposal] from 7% to 5% and adding a $35,000 cap.

Artist resale royalty debate to be revived - The Art Newspaper


Sketches from the elBulli Kitchen.

The objects on display—ledgers, notebooks, scrap paper—illuminate the extent to which cooking is a creative process, as impassioned and compulsory as any. While he ran elBulli, Adrià kept detailed records, filling stray pieces of paper with plating ideas, loose concepts, and flavor profiles. In these ephemera we see the evolution of Adrià’s style over decades, and his determination to articulate his designs. The sketches are a window into the expanse of Adrià’s imagination, in particular the plasticity of his process. As it turns out, he is just as likely to start with a visual impression of a dish, figuring out the flavor components later, as he is to begin with an ingredient—an approach that seems like the culinary equivalent of Ginger Rogers doing Fred Astaire’s moves backward and in heels.

The chef I worked for also laid out plans - new dishes, table settings, floral arrangements, his next restaurant - in highly detailed illustrations. I loved our office blackboard. His soft sketches and loopy handwriting were a joy to behold. It was like working for a miso-and-passionfruit-obssessed child of Edward Gorey.

Copyrighting of recipes has been covered well enough elsewhere.

(Source: theparisreview)

The “Fifth Factor” - Transformative Use Transformative use is a relatively new addition to fair use law, having been first raised in a Supreme Court decision in 1994. (Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994.) A derivative work is transformative if it uses a source work in completely new or unexpected ways. Importantly, a work may be transformative, and thus a fair use, even when all four of the statutory factors would traditionally weigh against fair use! Parody: Parody is one of the most clearly identified transformative uses, but any use of a source work that criticizes or comments on the source may be transformative in similar ways. Legal analysis about this kind of transformative use often engages with free speech issues. New Technologies: Courts have sometimes found copies made as part of the production of new technologies to be transformative uses. One very concrete example has to do with image search engines: search companies make copies of images to make them searchable, and show those copies to people as part of the search results. Courts found that those thumbnail images were a transformative use because the copies were being made for the transformative purpose of search indexing, rather than simple viewing. Other Transformative Uses: Because transformative use is a relatively new part of copyright law, it is still developing. Many commentators suggest that audio and video mixes and remixes are examples of transformative works, as well as other kinds of works that use existing content to do unexpected and new things. There is a lot of room for argument and interpretation in transformative use!

I do not often see transformativeness described as a fifth factor (most scholars, lawyers, and judges consider it a sub-factor of purpose and character), but I rather like this way of organizing a fair use analysis. It better describes the reasoning in most opinions! Understanding Fair Use | University of Minnesota Libraries