In pop culture, slackers are portrayed as playing guitar, but learning to play any instrument requires a lot of commitment and attention, the opposite of what a slacker stands for.
*psst* It’s the fact that capitalism doesn’t value artistic ability if it can’t turn a profit. Capitalism sees all the amateur buskers and starving artists and assumes that, since they’re barely getting by, they must not be putting in enough effort.
This persists into copyright cases. Some fair use cases have a very obvious judgment against artists who aren’t making money off their art. “They must be a bad artist,” the cases imply. “Let people just steal their stuff who are better at making money off of it.” DID YOU WANT A COPYRIGHT CRASH COURSE? OF COURSE YOU DID. PULL UP A CHAIR.
So, for instance:
Cariou v. Prince,
714 F.3d 694 (2nd Cir. 2013): Richard Prince, Well-Known Big Deal Artist with Fancy Million-Dollar Homes, takes some photos taken by photographer Patrick Cariou and alters them, basically along these lines:
Original photo on left; Richard Prince edition on right.
Cariou sues based on copyright infringement. Prince defends based on fair use and eventually wins on the vast majority of the photographs. What alarms me most about the case is how careful the court is to portray Cariou as a failure as an artist, giving us a whole detailed paragraph about how little money Cariou made off his photographs:
Cariou’s publisher, PowerHouse Books, Inc., printed 7,000 copies of Yes Rasta, in a single printing. Like many, if not most, such works, the book enjoyed limited commercial success. The book is currently out of print. As of January 2010, PowerHouse had sold 5,791 copies, over sixty percent of which sold below the suggested retail price of sixty dollars. PowerHouse has paid Cariou, who holds the copyrights to the Yes Rasta photographs, just over $8,000 from sales of the book. Except for a handful of private sales to personal acquaintances, he has never sold or licensed the individual photographs.
That paragraph is IMMEDIATELY followed by this paragraph:
Prince is a well-known appropriation artist. The Tate Gallery has defined appropriation art as “the more or less direct taking over into a work of art a real object or even an existing work of art.” J.A. 446. Prince’s work, going back to the mid–1970s, has involved taking photographs and other images that others have produced and incorporating them into paintings and collages that he then presents, in a different context, as his own. He is a leading exponent of this genre and his work has been displayed in museums around the world, including New York’s Solomon R. Guggenheim Museum and Whitney Museum, San Francisco’s Museum of Modern Art, Rotterdam’s Museum Boijmans van Beuningen, and Basel’s Museum fur Gegenwartskunst. As Prince has described his work, he “completely tr[ies] to change [another artist’s work] into something that’s completely different.” Prince Dep. 338:4–8, Oct. 6, 2009.
These twin paragraphs occur toward the beginning of the opinion, and note how they immediately set the tone: Cariou could barely give his book away, had to depend on friends and family; Prince is displayed in museums. Which of these artists, the opinion implies, is the one we should be supporting with the law? Why, unsurprisingly, the one making money!
One of the fair use factors is the effect of the alleged infringement on the market for the original work. Here’s the court’s analysis of that factor:
Although certain of Prince’s artworks contain significant portions of certain of Cariou’s photographs, neither Prince nor the Canal Zone show usurped the market for those photographs. Prince’s audience is very different from Cariou’s, and there is no evidence that Prince’s work ever touched—much less usurped—either the primary or derivative market for Cariou’s work. There is nothing in the record to suggest that Cariou would ever develop or license secondary uses of his work in the vein of Prince’s artworks. Nor does anything in the record suggest that Prince’s artworks had any impact on the marketing of the photographs. Indeed, Cariou has not aggressively marketed his work, and has earned just over $8,000 in royalties from Yes Rasta since its publication. He has sold four prints from the book, and only to personal acquaintances.
How can Cariou complain about his work being stolen, when he’s barely sold it himself? The court basically thinks it’s insulting of Cariou to imagine that he could be fit for Prince to notice, considering the rarefied air Prince occupies:
Prince’s work appeals to an entirely different sort of collector than Cariou’s. Certain of the Canal Zone artworks have sold for two million or more dollars. The invitation list for a dinner that Gagosian hosted in conjunction with the opening of the Canal Zone show included a number of the wealthy and famous such as the musicians Jay–Z and Beyonce Knowles, artists Damien Hirst and Jeff Koons, professional football player Tom Brady, model Gisele Bundchen, Vanity Fair editor Graydon Carter, Vogue editor Anna Wintour, authors Jonathan Franzen and Candace Bushnell, and actors Robert DeNiro, Angelina Jolie, and Brad Pitt. Prince sold eight artworks for a total of $10,480,000, and exchanged seven others for works by painter Larry Rivers and by sculptor Richard Serra. Cariou on the other hand has not actively marketed his work or sold work for significant sums, and nothing in the record suggests that anyone will not now purchase Cariou’s work, or derivative non-transformative works (whether Cariou’s own or licensed by him) as a result of the market space that Prince’s work has taken up. This fair use factor therefore weighs in Prince’s favor.
Prince is selling his works for millions of dollars; Cariou is a capitalist failure; so Prince is entitled to what he wants to take.
This same judgment can be found in more cases, like Blanch v. Koons, 467 F.3d 244 (2nd Cir. 2006), where, again, Big Deal Artist Jeff Koons took a photograph by Blanch and incorporated it into his art:
Again, in the fair use analysis, in the fourth factor, the court included a judgey paragraph about Blanch’s failure to make much money off of her photograph:
Blanch acknowledges that she has not published or licensed “Silk Sandals” subsequent to its appearance in Allure, that she has never licensed any of her photographs for use in works of graphic or other visual art, that Koons’s use of her photograph did not cause any harm to her career or upset any plans she had for “Silk Sandals” or any other photograph, and that the value of “Silk Sandals” did not decrease as the result of Koons’s alleged infringement. In light of these admissions, it is plain that “Niagara” had no deleterious effect “upon the potential market for or value of the copyrighted work.” 17 U.S.C. § 107(4).9 The fourth fair-use factor greatly favors Koons.
Now, of course, this isn’t in every fair use case. Many fair use cases don’t contain this judgey language. But I feel it’s important to call out the ones that do, to notice when that capitalist bias is creeping into the analysis.
Truthfully, copyright law seems generally bewildered by people who create for reasons other than monetary reward. As you may have gleaned, I am fiercely protective of the right to create *without* seeking money if you don’t want to, of the right to create things *just for fun,* and of that creative impulse being just as valuable and important and wonderful as those creative impulses that request payment. I wish the law would be better at recognizing that you’re not a worse artist less deserving of copyright protection because you’re not a millionaire.
Of course, I wish the law in general would be somewhat better at recognizing you’re not less deserving of protection because you’re not a millionaire.
funeral-biscuit 