Week 4

Originals and Copies: The Problem of the Two Mona Lisas


Leonardo's Dub Studio

The question of originals and copies (although reaching a crisis point today) has a long history in Western culture. The ideology surrounding the idea of the original, the real, and the authentic has also been a major export to the rest of the world.

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The "Mona Lisa," Louvre Museum (Paris) (left) and the recently restored Prado Museum (Madrid) "Mona Lisa" (right), a contemporary version from Leonardo's studio. How can a painting made in real time with another painting in the same studio be a "copy"?

For some relief from the heavy issues in legal theory and the status of cultural works in remix culture today, here's an interesting case from deeper history: The Problem of the Two Mona Lisas (just started an essay on this). Here's the link.

--Martin Irvine


There is a great paragraph in Rhythm Science in which author Paul D. Miller (a.k.a., D.J. Spooky, That Subliminal Kid) breaks down not only the mechanical but also the psychological issues that have been haunting intellectual property discussion for centuries, if not millennia. “The originals are not original. … The first book tyrannizes over the second,” said Ralph Waldo Emerson—in 1875. But over a thousand years earlier, a bloody war had been waged over the very same issue. One person had lent another the only extant copy of a Christian manuscript, an original; the borrower had then copied the words verbatim, and when a judge sided with the lender—“As the calf belongs to the cow, so the copy belongs to the book.”—the borrower literally fought for his right to keep the copy (Rhythm Science 73). Has nothing changed since then?

It’s hard to litigate intellectual property because it’s hard to demarcate the physical properties of things produced by mental activity. This week’s case studies well illustrate that. There is an inherent tension in living in a perpetual postmodern soup, wherein every pop culture gem is immediately a stepping stone to another, but wherein all people are scrambling to protect the thoughts they have (as if they are the first to have it, which, if you were to ask them, they’d probably admit they weren’t with regard to most things). The journey of the Obama “HOPE” poster is a good example. Shepard Fairey made the iconic poster from an image that was the legal property of an AP photographer, Mannie Garcia. But how did Garcia feel? The New York Times said he was "proud of the photograph and that Fairey did what he did artistically with it, an the effect it's had," but that he doesn't "condone people taking things, just because they can, off the Internet."

In short, nobody wants to pay the piper. Everyone wants to not only be a consumer but to also be a producer of pop culture, but no one wants to pay the price—which is, evidently, a faceless absorption into the pop cultural, psychological fabric. (Except, it seems, when it comes to meme-making...)

Derivative Works Are Protected, But Parody or Pastiche?

Consider all the rip-offs of the Obama “HOPE” posters. In his online book, The Illustrated Story of Copyright, Edward Samuels touches on the “Derivate Works” clause in copyright law, noting that it gives creators “the exclusive right to make a ‘translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgment, condensation, or other form in which a work may be recast, transformed, or adapted.’” Fair use under copyright law protects parodies. However, if we can return to postmodern theorist Fredric Jameson—just how do we objectively categorize what is parody and what is pastiche? Does the law differentiate between the two? Should it? How do we even begin to non-subjectively evaluate work to the extent that we can say, x builds meaningfully upon y, and is therefore parody—not pastiche—and is legally protected, while z is a carbon copy with nothing to say, nothing to add to the discussion, and is therefore pastiche and not legally protected? What stopped Shepard Fairey from claiming he was "parodying" Mannie Garcia’s original photograph? Are all the images fans and ordinary citizens have made in Shepard Fairey's style protected by the fair use claim they are "parody"?

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Thoughts About Memes

It is also worth considering what makes something a visual meme on the Internet. A visual meme is humorous because its image and tone become ubiquitous and almost universally understood by at least some pocket of the online community. But the creator of a meme is the opposite of Shepard Fairey, indeed of most creators—they want the wildfire iconic reception to their work that the Obama “HOPE” poster got, but none of the attribution. Visit Quick Meme to understand what I mean. (Check out the First World Problems and Success Kid memes, for example.) Memes succeed precisely because they have no owner—they belong to everybody, and almost everybody comes to understand how to properly use them. All memes are remixes without authors.

Lin Lu
As the TED talk given by Lessig suggested, we were experiencing the Read Only Culture instead of Read and Write Culture because of digital technologies. Rather than create creativity, people prefer to consume creativity created by others. Digital technologies and internet also strengthen people’s ability to consume cultural products, including photograph, music, paintings, and etc… Reproduction of cultural products is booming since social media and online sharing website emerges. For instance, statistics provided by YouTube indicated that “48 hours of video are uploaded every minute and Over 3 billion videos are viewed a day.” Tremendous amount of contents and videos are uploaded to YouTube every day, which causes YouTube to suffer a great potential of violation of copyright. Although YouTube displays that “Do not upload any TV shows, music videos, music concerts or advertisements without permission, unless they consist entirely of content that you created yourself”, the question is how to understand “entirely of content that you created yourself”. For instance, there are so many people that imitate pop singers and reproduce their songs and then upload videos to YouTube. Are these video containing entirely of contents that created by users? Definitely not. Songs are owned by singers and authors. Are these imitative behaviors violating copyright law? The answer is unclear. At least, these types of videos still exist in the YouTube and some of them are the most clicked videos. This phenomenon seems to be inevitable. As Lessig defined, amateur culture was the plausible term for this phenomenon. Lessig further illustrated that these people reproduced and remixed cultural products “for the love not for the money”. Lessig also argued that remixed products were used to express users’ thoughts, views, and expressions towards the world. Based on Lessig’s words, these types of appropriation will fall into the regime of “fair use”. The following video is one of these remixed and amateur cultural products.

However, the case of the Obama “HOPE” posters and the case of Chinese Grass-root Duo Xuriyanggang triggered me to think common characteristics that they shared. Although, as Wiki stated, “Fairey admitted that he had based the poster on the AP photograph and had fabricated and destroyed evidence to hide the fact”, AP photography and Fairey would work together with Hope Image in the future. The Chinese hottest Grass-root Duo Xuriyanggang was singing beside pedestrian way before they gained reputation. When a friend of them recorded their performance of the song named “In the Spring” and uploaded to the Internet, Chinese people was touched by their “clearest” voices. After that, they performed the song named “In the Spring” in the China Central Television (CCTV) Spring Festival Gala and became hottest Grass-root Duo. However, the author of this song started to prohibit them to sing their signature song “In the Spring”. Both copyright debates occurred when cultural products became famous and well-known. I would say that manifest commercial values triggers more and more copyright debates in digital era.

Yvonne Junya Yuan
The copyright of electronic content and publication

Electronic contents and publications are highly virtualized and can easily be distributed or transmitted across the internet, which gives the users opportunities to obtain a product's essential content or functional value without purchasing the product physically. The unique characteristics creates legal problems and copyright disputes and has been a major concern of the electronic publication industry in recent years mainly because 1) on the internet, it is hard to connect a piece of creation like a literal article, a paragraph of comments or a uploaded photo with a real person or a certain legal entity. People from different regions of the web share and create the internet content at the same time, and mainly are anonymous. 2) The internet-virtualized creation is hard to define as a legal publication and even harder to be restricted and supervised by law because different country has different legislation while internet has no boundaries. 3) Internet itself as well as many users across the world is encouraged to share information and content freely through internet; protection on copyrights of certain publication annoys people and distorts the free-sharing spirit of internet, which is also why the problems have long been unsolved.

The goal to improve the protection of copyrights on virtual products is highly sensitive and tough to achieve. Still, we know that proper legislation and contract between producers and users are the right direction to look at.

For example, nowadays almost all the online video game provider and carrier require players to sign the agreement before they can play the games. Like Blizzard Inc., the creator of the World of Warcraft (WOW), the world’s most popular MMORPG with multimillion players online daily, insist in their initial agreement that “all the contents and characters, including the accounts of players, are the intellectual property of Blizzard and no one is supposed to trade their accounts or visualized items without Blizzard’s permission.” This means the players of this game are actually “leasing” the playtime for their own-created characters, they are not allowed to replicate, transact or share their accounts and virtual contents with anyone else without signing a new agreement with Blizzard and Blizzard itself has the ultimate right to take everything back without losing anything.

However, you don’t want to piss off too many internet users by this kind of arbitrariness. In 2011, Sony Computer Entertainment was attacked twice by a group of hackers and its main database was robbed. Over 150 million user accounts’ information, including the users’ credit card information was leaked to the internet. Sony suffered a great loss and was pushed into a disastrous situation in future business in electronic publications in this war with hackers and decoders. The war started as Sony banned a few internet blog and sued the users on sharing a emulator – a self-made software that allows players to play Sony PlayStation games on a PC without purchasing the real Sony console nor the game CD. The emulator, as well as other decoding software of electronic device (eg. The cracking soft of iPhone that made Steve Jobs upset) has long been disputed in and outside of court. This time, Sony loses everything because there is no legislation on banning the emulator and about 10,000 lawyers are preparing to sue Sony for leaking their personal information because of the stupid way they pissed off the hackers.

Jasmine Wee
The “Canal Zone” Case: How far should intellectual rights go?

The biggest art-theft/intellectual property case in recent years, the “Canal Zone” case is an example of the complexity of intellectual property rights. Patrick Cariou, a French photographer, sued American artist Richard Prince and Larry Gagosian, Gagosian Gallery and Rizzoli Books in December 2008 for infringement of intellectual property rights. Prince’s “Canal Zone” series paintings use 41 photographs by Cariou (without the artist’s permission), edits them but to the point that one can still identify the original from the reworks, and sold them under Gagosian Gallery. Rizzoli Books also printed Prince’s images on numerous catalogs and other promotional materials. In March 2011, a Manhattan federal district court judge ruled Prince to be guilty of these charges on the grounds that his works were not “transformative” enough to be ruled as different and truly original from Cariou’s photographs, among other reasons. Prince decided to appeal this charge and will meet again in May in the US Court of Appeals for the Second Circuit. I will use the “Canal Zone” case as an exercise to adapt the Theories of Intellectual Property as listed by Fisher to identify instances of agreements and discrepancies.
The grounds on which the judge determined Prince guilty are as follows: first, as mentioned above, the judge ruled that “there is vanishingly little, if any, transformative element” found between Prince and Cariou’s works; the less transformative a work, the more important its commerciality becomes, and indeed Prince’s paintings have sold extremely well, with one of the paintings having been sold for $2.5 million. 40% of the Canal Zone revenues went to Gagosian and his gallery, while the gallery also sold $6,784 worth of exhibition catalogues, of which Rizzoli Books also received a cut. The judge also said Prince exhibited “bad faith”, as Prince never asked Cariou for permission to use the images.

Left: Patrick Cariou. Right: Richard Prince.

The second element is the “nature of the copyrighted work”. The defendants questioned Cariou’s copyright of the images, asserting that the images themselves were not artworks but merely records of facts, “arranged with minimum creativity.” The judge overruled this claim. The third element is the “amount and substantiality of the portion of the copyrighted work used”. Because Prince appropriated key images and central figures of Cariou’s work, she believed that the amount of Prince’s taking, compared to the slight transformative value, justifies Cariou’s claim. Lastly, the judge also determined that Cariou’s person, and his real and potential markets, have been harmed by Prince’s appropriation. In real market terms, Manhattan gallerist Christiane Celle cancelled a schedule exhibition of Cariou’s photographs because she did not want to be seen as “capitalizing on Prince’s success and notoriety…and did not want to exhibit works which had been ‘done already’ at another gallery” (namely the Gagosian).
Perhaps interestingly, in Prince’s decision to appeal against this charge, his lawyers brought in art theory to help them fight the case. His lawyers argued that when the artist gave his original standoffish testimony (which did not help his cause), it was “consonant with the core post-modern belief that an artist’s intent is irrelevant because an artwork’s meaning is manifold.” Meanwhile, several artistic institutions such as the MoMA and the Met rallied behind Prince, claiming that the judge’s decision is a blow to “the strong public interest in the free flow of creative expression.” In contrast, Cariou’s lawyers are trying to rebuff this with a “revisionist” art history argument: "Fittingly perhaps, in a case involving appropriation art, appellants’ brief is 'post-modern,' questioning basic concepts such as: what is a fact, and what is properly before an appellate court on an appeal?" they write. And of course, there are scholars and lawyers who welcomed the judge’s charge, believing that this kind of appropriation has gone on for too long—at least since Picasso—and has gone unchecked. But is art theory the same as intellectual property theory? Could Postmodernism and Revisionism, both terms which are quite irresolute and with numerous interpretations of, be used to decide on the legal aspects of art? Which side, then, is right? The side for basically unbridled artistic expression, or the side with more restraint?
According to Fisher, there are four basic theories of intellectual property, all of which are especially useful in covering certain types of intellectual property and not others: utilitarianism, labor theory, personality theory, and social planning theory. Utilitarianism is the maximization of net social welfare, and striking “an optimal balance between…the power of exclusive rights to stimulate the creation of inventions and works of art and…the partially offsetting tendency of such rights to curtail widespread public enjoyment of those creations”. (2) If viewed from the scope of Utilitarianism, then it could be said that Prince wins because his art has brought greater good to society as a whole, as opposed to Fisher’s personal loss. This is evident by the fact that Prince’s art sold a total of $10.48 million, so people evidently like his work enough to pay this kind of money for it. Additionally, if Prince is guilty as charged, it is possible that many artists, art galleries, auction houses and artistic and cultural institutions will suffer because it stifles the invention of new art. Prince 1:0 Cariou

The Labor Theory, derived heavily from the writings by Locke, surmises that “a person who labors upon resources that either unowned or “held in common” has a natural property right to the fruits of his or her efforts – and that the state has a duty to respect and enforce that natural right” (4). This is especially applicable where labor seems to contribute significantly to the value of the finished products. If viewed from a Labor Theory perspective, then Cariou wins, because Prince did not labor on something that was “held in common” or “a natural property”, such as air or water; he worked upon a photo by Cariou. The fact that Prince failed to ask for permission further shows Prince’s disregard for Cariou’s creativity and labor put into his photographs. P 1:1 C
The third intellectual property theory is the Personality Theory, originally stemming from Kant and Hegel’s writings. It argues that private property rights are crucial to the satisfaction of some individual’s fundamental human needs, and as such, “intellectual property rights may be justified either on the ground that they shield from appropriation or modification artifacts through which authors and artists have expressed their “wills” or on the ground that they create social and economic conditions conducive to creative intellectual activity, which in turn is important to human flourishing” (6). Justin Hughes expanded upon the Personality Theory, claiming that “we should be more willing to accord legal protection to fruits of highly expressive intellectual activities, such as the writing of novels, than to the fruits of less expressive activities…because a person’s “persona”…is an important “receptacle for personality… Authors and inventors should be permitted to earn respect, honor, admiration, and money from the public…but should not be permitted to surrender their right to prevent others from mutilating or misattributing their works.” In this case, it is harder to conclude which artist is right. On one hand, the “private property rights” of Cariou ought to be defended because he expressed his “will” that his work not be recycled to create new art, in the way Prince did. Cariou believed that Prince tarnished his reputation by doodling crass and ironic imagery on his somber and spiritual photographs. On the other hand, Cariou’s work has in fact been conducive to creative intellectual activity, and now that it has emerged, how would the Personality Theory go about solving this paradox? P 2:2 C
The final intellectual property theory named by Fisher is Social Planning Theory. It claims that “property rights in general—and intellectual-property rights in particular—can and should be shaped so as to help foster the achievement of a just and attractive culture” (6). If one argues that a just and attractive culture derives from having more art than one with less art, regardless of the quality and content of the art, then Prince wins because his art contributes to the attractive and just (arguable) culture, and people obviously like his work enough to buy them in first place; Prince is also one of many artists who have based their entire careers on appropriating materials from other artists or inspirations that are not even art. In fact, this boils down to a key issue that affects art, music, and all aspects of culture and society—that in our contemporary world, it is so easy to just appropriate, copy-and-paste, and create something that consciously or unconsciously is taken from somewhere else, where do we draw the line when deciding what is stolen and what is not? How do we differentiate “justified appropriation” with “stealing”? The answer is indeterminate, and perhaps we will have to wait until May for an answer. No matter what result the appeal would be, the art world will continue to struggle with this notion for as long as anyone takes a photograph—or, in Prince’s case, when someone decides to paint a silly face and a guitar onto one.