Who Owns the IP?
We went to the opening of the Richard Prince show at Gagosian Beverly Hills. An incredible space. The place was packed certainly emphasizing that the art world in LA has changed. Frieze is coming up for the second year, NY galleries are taking spaces and artists are finding their groove in the California sunshine. I don’t know what the actual data is around sales but collecting art is a long game.
There are lawsuits and a lot of conversation around these Prince pieces. He has blown up images that he found scrolling through Instagram and created pieces with his own twist putting the photos on canvas paper that intensifies the colors. Prince is known for using other people’s words and art in his own works.
Some rap music is mixed with music from other artists and songs. Louis Vuitton applauded artists who used their logo canvas as the backdrop of their work. The garment center is renowned for taking looks off the runway and knocking them off with the slightest twist.
We all post on social media. Does posting your own photos, your own words, your own thoughts become public domain? The question is who owns the intellectual property?
Great question.I can’t really answer it though.
Well if it goes to court the outcome will be interesting
This is so true and hopefully it will. As the court now stands, here is an opinion on how it might rule. https://abovethelaw.com/201…. This issue, along with issues like privacy, property rights will be huge over the next ten to twenty years. I might suggest that liberals who favor abortion rights might be finding themselves agreeing with Constitutional originalism when it comes to the rights of privacy, private property, copywright, and patents. I can’t recall the case, but there was one where Kagan and Scalia wrote separate brilliant opinions that agreed. Since my daughter is in law school, we hear and chat about this a lot these days…
This idea that the social platform are both not responsible for the information on them or as well not responsible for how our information is used is something I am less and less tolerant of.If you have not listened to this you might. https://www.npr.org/program…
Will NFT technology be able to solve this problem in the first instance?
Technically maybe but this is more than a technical problem.Spend some time hacking around in the NFT digital art world.Super fascinating, super early, really amazing community that is bubbling up on all the exchanges.If you are into art, literature, creative expression, new communities and the blockchain, worth the time. Bunch of great podcasts.
And the answer is…?
I put copyright watermarks on my photography work that I share online, though not on my general day to day posts. Maybe I’ll create a filter for my phone so I can quickly apply a copyright when on the go…The IP question is interesting, depending on how the court will see it (it also matters what country you are in and what country the post is from). If you apply U..S. photography IP rules to this: any photo a photographer takes in a public space can be used in any non-commercial or editorial way without the permission of the people in the photo (for example, in a newspaper article). The permission of the people in the photo is needed if the intent of the use of the photo is to promote something that is a commercial enterprise (for example, in an ad for a product). Art is always one of those categories that bridges the line of the law. A photographer can use a photo with people in it in a public space to make art but not for a commercial enterprise. It gets tricky when you get into the question of whether the art itself is a commercial enterprise.What will be decidedly critical in this case is how the courts perceive the following:1 – Is the internet a public space? 2 – If so, then are these photographs? (In the U.S. there is a differentiation between photography and graphic design assets in regards to IP; In most European countries these two things are treated very similarly. In the U.S. photographers have wayyyyyyy more IP rights than graphic designers*)3 – If the internet is a public space and if these are photographs, then what are the rights of the individuals who are the subjects?*This is why Shepard Fairey lost in the IP court case about the Obama design. The court ruled that he directly stole the likeness of Obama from a photograph that was taken by the Associated Press photographer Mannie Garcia. Obama himself had no rights in the case.Thanks for posting this. Really interesting questions arising from this.
As an IP lawyer, I understand that people have different perspectives on the intersection of creativity and art and IP. The problem I have with Prince is – no matter where you fall on that debate – he is not transforming, changing or adding anything of his own to the already existing work. He’s copying other people’s work and freeloading off of them. He has been to court on this issue several times, arguing an assortment of things, including “fair use.” I don’t see it and to call this fair use – to me – is a wrong application of that doctrine.
I agree with everything you said. The Donald Graham case is a perfect example of this. I worked with him and know the case very well. My husband, a photographer, did a series on drag queens that went viral. One of had his half drag images was stolen off the internet and used in Croatia on the cover of a religious book promoting anti-LGBTQ beliefs. The only way we found out about it was through a journalist in Croatia. He helped us find a lawyer there and we settled out of court. The settlement was not for usage. And they had to destroy all unsold book covers.
This is a very relevant question in our era, and I’m so glad you’ve asked it Joanne. I think what Prince is doing is akin to social commentary, by documenting the people of our generation, similar to what historians and other artists before him have done, by showcasing the exhibitionism inherent in social media that can also paradoxically lead to self isolation and alienation. Julia Kristeva has said “reality is the screen” before the advent of the internet, and Prince is continuing that train of thought.Prince also gives credit to the original producers by including their instagram usernames and hasn’t altered their work, but curating them into his concept. The IP of each individual belongs to them, but the curation itself belongs to him.If we think about IP, this also relates to technology, especially in open source, when companies build on top of each others’ code post early 2000s. IP is now collaborative and we are moving away from the patent wars and patent trolls of the Apple v Samsung tech giants.However, it is violating IP if a company takes another company’s work and changes wording slightly to transcribe it as their own without giving credit, even if legally this would be hard to prove. In Blockchain, innovators credit each other, collaborate and build on top of each other. i think that’s what separates the great from the mediocre and and what also determines what is art.
The rights or content originators would depend on what copyright they originally attributed to their content when they disseminated it. You can find out more about Creative Commons here – https://creativecommons.org/