Modern Authorship: A Preview of Our Panel at SXSW 2016

This is a preview of our proposed panel at SXSW 2015.  Please vote for it if you enjoy the content and want to hear more!

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It’s the most wonderful time of the year! It ain’t Spring time, and it ain’t tax season–it’s time to apply for SXSW 2016 panels!  I had the pleasure of attending South by Southwest 2015 after being selected for a panel about Legal Hackers.  It was absolutely bananas, so I’m gearing to get there again.  

This year, we’re going a more niche route.  Talking it over with my partner at Fridman Law Group, Iliya, we wanted to come up with an advanced session for visual artists about the law that affects them most: copyright.  One thing that immediately came up was Monkey Selfies.  The other was Richard Prince and his new installation in NYC that caused quite a stir: New Portraits.

As IP attorneys we really like these case studies because they are (1) oddities, and (2) suggestive of new trends in how we understand original authorship.  Specifically, both of these situations raise important questions about whether the current US copyright system is doing what it’s supposed to do: “promote the progress of science and useful arts.”  That’s from the Constitution, people!  Taking on the true legal-hacker ethos, I gotta ask: do we need to hack a better system here? Or is the current IP regime doing what it’s supposed to do when it comes to these odd case studies?  The end goal is to talk about what it means to be an “author” under the US copyright system, and maybe even propose some paths going forward to adapt that system.

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Let’s take the monkey selfie case for starters.  If you don’t know the story, a nature photog named David Slater went into Indonesia to study and photograph a troupe of rare monkeys.  At some point during his time with the primates, one of them, a Celebes crested macaque (note that Wikipedia entry still sports the infamous monkey selfie), grabbed his camera and shot off hundreds of photos, including a few of the monkey’s own face.  One of these photos was good enough that Wikipedia used it in one of its entries (the pics are indeed AMAZING).  Putting aside for a second that Wikipedia is basically a fair use engine that would have a hard time infringing on anyone’s copyright, Slater issued a takedown request to have the image removed.  On review, Wikimedia refused to take it down because the monkey itself took the photo, not Slater. In other words Wikimedia claimed that Slater would not be the “author,” or owner, under US copyright law.  

In a set of belly-laugh-funny comments, the Copyright Office later agreed (links/emphasis mine):

The Office will not register works produced by nature, animals, or plants [Ed: “let me paint you, Seymour!”]. Likewise, the Office cannot register a work purportedly created by divine or supernatural beings, although the Office may register a work where the application or the deposit copy(ies) state that the work was inspired by a divine spirit.

Examples:

  • A photograph taken by a monkey.
  • A mural painted by an elephant.
  • A claim based on driftwood that has been shaped and smoothed by the ocean.

Side Note: I’ll put this comment into my pile of majorly missed opportunities–as soon as we’re talking about a set of things including elephant-painted murals, monkey selfies, and driftwood shaped like Jesus’s face, I would think you have to go all out!  I would have definitely included elegant designs made of bird poop and concertos composed by cats in meow minor.  Also, I’m really curious how many people are listing God as the author of their copyrightable works on public filings.  Will definitely have to look into that one.

But the part that’s relevant for our panel is what follows:

Similarly, the Office will not register works produced by a machine or mere mechanical process that operates randomly or automatically without any creative input or intervention from a human author. Examples: A claim based on a mechanical weaving process that randomly produces irregular shapes in the fabric without any discernible pattern.

Enter Phillip Stearns.  Phillip is a visual artist who creates glitch textiles.  These are fabrics that are created from software and altered hardware.  I think Phillip would disagree that the patterns of his cuts are non-discernable, but there’s an interesting result when you consider his work against the Copyright Office’s stance on what human creation is.  Although Phillip painstakingly creates this amazing hardware and software that produces beautiful visual art, his work is apparently not protectable.  Now I’m not proposing we bring back so-called “sweat of the brow” copyright, but what’s fascinating here is that if Phillip said nothing about how the designs for his fabrics were made, I doubt the Copyright Office would say peep.  Instead, as you’ll hear on our panel, the Copyright Office has taken issue with his works simply because of his process.  

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Our second case study revolves around Richard Prince, a famed “appropriation” artist who is no stranger to the courts.  Prince recently put on an installation in New York called New Portraits.  In that installation, Prince took photos from Instagram users, many of them professional Instagramers, and put them in a collection of works, basically unaltered.  Some of those works sold for as much as $100,000, which left a lot of people scratching their heads.

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Prince has been doing this for decades.  One of his more notable works, from a copyright perspective, led to the 2nd Circuit Court of Appeals’ most recent statement on fair use, which as a result is extremely broad.  That case, Cariou v. Prince, was another instance where only slightly altered photographs were cast as new art.  It was eventually settled after the 2nd Circuit clearly stated that Prince’s work, in that case, was fair use.  But New Portraits seems to go back to the core of appropriation–distributing pictures of pictures.

Prince’s work is a lot of fun to talk about for many reasons, but particularly because it raises a fundamental question that artists ask (or at least should ask) all the time: “is this art?”  And if so, what does it add to the discussion, to society?  I used to have a very broad answer to the initial question–I used to think that art only required intention (i.e., a statement that “this is art”).  After seeing the logical conclusion of that definition, I’m forced to claw that back a little. In any event, it is a question we will be discussing at the panel I’m sure.

To help with our discussion of IP, appropriation, remixing, philosophy of art, and fair use, Elisa Kreisinger will be joining us.  Elisa is a remix artist who also has expertise in IP and policy.  Her amazing videos recut and remix existing content to create new meaning, in her most-viewed works recasting pop culture icons as feminists and lesbians.  Elisa’s Queering Sex and the City remix is a fantastic example of the power in using existing content toward that sort of social commentary.  On the IP front, one thing to note about Elisa’s work, compared to Prince’s, is that Elisa constantly faces a barrage of DMCA takedowns for her videos, affecting the public reach she can attain.  At our panel we will discuss why the in-person gallery is a sort of safe haven that doesn’t appear to have an analogue online.  That is, what or where is the protected space for experimental authorship online today?  And why is there a disconnect between what Prince is allowed to do on paper and what Elisa can do on YouTube?  

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This is a quick look into what we hope to achieve at our panel.  If you’re interested, please vote for us today HERE.