Archive for January, 2012
It’s a cruel world that makes a thief out of an adoring fan. Erik den Breejen is a keen Beach Boys fan and one who knows, now, what the back of a beloved hand feels like.
Recently, reading an article on NewsGrist, a blog that mixes equal parts of arrogance and naiveté, I came upon the usual blah blah about inarticulate artists and the ineffable meaning of their awe inspsiring creations. Add to this a wholesome toot of tired and foggy hot air about Pollock and what did he mean by x,y, or z?
All this wearying nonsense went toward commentary on the Richard Prince case, childishly insisting that Richard Prince’s cocky and deliberately bungling deposition claiming that he meant nothing should simply be ignored while the rest of his deposition, i.e. anything supportive of his fair use claim, should be paid close attention to.
I marvel at this “inarticulate” artist argument— especially as regards Richard Prince, a self named bibliophile who wrote a screenplay and who’s written prose is not only proficient but downright poetic.
The argument that artists would or should need coaching is silly as well. ALL defendants need coaching. EVERYONE who speaks or debates in public has talking points. There is nothing unique to artists that should absolve them of having to make sense.
A fair use defense is not a matter of defending the “ineffable” — we are cultural grown-ups and well beyond such assinine and childish beliefs.
If a defendant wants to claim fair use, they have to prove fair use and that hangs largely, especially in this case, on Transformative use. That’s the way the current practice works.
I happen to think that transformative use is useless anyway: that’s a better argument. Frankly the spirit of copyright law is to preserve the incentive to create. ANd bottom line, these days, that speaks to markets: markets of IDEAS, of INFLUENCE, of ATTRIBUTION, and of MONEY.
So PRACTICE is the issue if you dont’ like coached answers and you don’t like judges mucking about in issues of meaning –practice needs to be changed with regard to transformative use. Remember that transformative use is NOT written into law. Courts can and should pay more mind to market issues and less to “meaning.”
But as things stand, Prince messed up big time by being a cocky inarticulate asshole.
That’s what I think.
Providing a pivot for the Cariou v Prince case and the only real point of interest no matter what the pundits say, transformative use, instead of the fog-clearing test that it was supposed to be, has become the main particulate in a legal fog of war that has lasted three years now.
Thus far, the dueling Cariou v Prince briefs have added new certainty to my theory that transformative use is a singularly unhelpful notion.
As a follow up to my earlier story about the crochet artist, Olek, I just verified today rumors that the charges against her are, indeed, in writing, very serious.
You will recall that Olek’s own story was that she got “involved in an incident with a drunk and aggressive male who behaved reprehensibly. The incident happened extremely quickly and not knowing anyone in London or able to access her cell phone for numbers she was swept up into the legal system and treated very poorly.“
I hope all readers will bear this in mind. I hope you will realize as well that women are constantly in danger of escalating situations with this sort of “aggressive male” and don’t know the details of Olek’s encounter yet.
That said, the charges, in writing, as sent to me by the Southwark Crown Court in London are as follows:
Wounding with intent
Wound/cause grievous bodily harm without intent
Assault by beating
Possess knife bladed/sharpe pointed article in a public place
Southwark Crown Court informed me that the trial date is set for September 3, 2012.
Attempts to obtain a fuller story from Olek’s lawyers have met, so far, with silence.
In my latest Hyperallergic article, part Two of a there part series on the importance (or not) of the Cariou v Prince case, I discuss the money issue:
“The Prince team, in asking that “the judgment of the district court should be reversed and summary judgment entered for Defendants” or that “ the judgment should be reversed and the case remanded for a new determination on the issue of fair use” has a lot at stake. And only a sliver of that has to do with all the sweat and tears that went into that masterpiece. It can be argued that perhaps more of the stake is in the artist’s market.”