THE BLOG
01/31/2011 07:26 pm ET Updated May 25, 2011

The Panda Appropriations -- Part 3: Playing the Courts

2011-01-27-5042639898_2a8a4ff2a8.jpg

A Threadless-organized flash mob poses at Gavin Brown's Enterprise in front of a Rob Pruitt panda painting featuring AJ Dimarucot & Jimi Benedict's best-selling T-shirt graphic, When Pandas Attack.

Not long after the opening of Pattern and Degradation, his huge two-gallery two-city block show at Gavin Brown's Enterprise and Maccarone Gallery, Rob Pruitt paused in an odd compulsive moment while speaking to HuffPost blogger Marina Cashdan:

"There's something that I want to discuss. This image I snapped on the street about a month and a half of ago. This guy was wearing a t-shirt and the panda was just screaming and it was really great. It's mostly pictures of pandas I've looked at for the last 12 years, but I've never really seen one like this. And so there are a couple of blogs, people saying a lot of things about plagiarism, that I should be sued for stealing this image, but nobody is asking how I encountered the image..."

The image in question is used as an offset repeat, applied to a huge glittered and flocked painting. It is a replica of "When Pandas Attack," a best-selling Threadless T-shirt graphic, created by AJ Dimarucot and Jimi Benedict (aka Jimiyo).

In fact, According to AJ Dimarucot, the replication is so complete that it gives the lie to Pruitt's claim that he found the image, at random, on the street one day and snapped a picture of it:

"Rob mentioned that he took a photo of a guy wearing the shirt somewhere. That's pretty much bullshit because if you look at his painting and compare it to the shirt, the splatter that comes out of the the top left and bottom right of the panda was never shown on the shirt. He obviously took the image online, blew it up and copied it from there. So everything was calculated. Nothing random about it. It was purely calculated thievery. "

If you think this is irrelevant information, think again. There are some courts of law that would find this very interesting. Why? Because the Dimarucot/Benedict graphic was used in toto, and, it could be argued, not transformed at all: this could lead to the argument in court that the object was not used to make a comment or to criticize, so much as it was leveraged to avoid labor.

But, it could also be argued that the artist's history as an appropriation artist who lays claim to pop iconography, his theme of Rumspringa (an Amish ritual wherin a youth experiences the outside world before committing to his faith), and his use of the graphic as a repeat, all constitute a transformation could justify a "fair use." defense.

When cases of copyright infringement go to court, it is rarely clear from the outset which side will prevail. Past court decisions vary greatly in bias and in consideration of factors that favor plaintiffs or defendants. And, more and more cases are settled out of court, leaving a dearth of judgements to base predictions on.

Fair Use: a Crap Shoot

Fair use is defined in Section 107 of the Copyright Code, and is meant to limit the exclusive rights of copyright ownership in cases where a work is used "for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research."

In those cases, the use of a copyrighted image is not an infringement of that copyright. The courts base determinations of fair use on a weighing of four factors: 

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.

The problem is that the details of how to consider these factors have been left to the courts and to the plaintiff's ingenuity.

Part of the reason that an artist like Rob Pruitt can build a career out of quotations, traces and copies is just that: the interpretation of what has become known as "the doctrine of fair use" is subjective: going to court is a crap shoot; and artists with backing can afford to lose if need be.
In 2006, in the case Blanch v. Koons , Judge Katzman commented on the nature of copyright infringement cases and contemporary practice in the art world:

"Appropriation artists take other artists' work and use it in their own art, appropriating it and incorporating it in their own product with or without changes. Because of this appropriation, often (as in this case) done without giving credit to the original artist, the appropriation artists can expect that their work may attract lawsuits. They must accept the risks of defense, including the time, effort, and expenses involved. While that does not remove the appropriation artist from the protection of the statute, litigation is a risk he knowingly incurs when he copies the other's work."

Blanch v. Koons, by the way, was the first case won by Koons, in a series of lawsuits stretching back to the early nineties.

The difference? Well, it may be as small as a new term, "transformative use," attributed initially to Judge Pierre N. Leval, who defined it in a 1990 article in Harvard Law Review as any use that "'employs the quoted matter in a different manner or for a different purpose from the original."

In 1994, the Supreme Court held, against a previous court of appeals ruling, in favor of the members of 2 Live Crew, accused of infringing upon Acuff Rose's copyright in Roy Orbison's "Oh Pretty Woman." The court's opinion revolved around the concept of 'transformative use' making the case that parody used copyrighted material to transform its meaning, and that such use did not serve to supersede the market value of the original.

Subsequent to this case, more decisions have come down on the side of the defendants, who may now benefit greatly by demonstrating transformative use. Always a matter of interpretation, with the courts weighing each of the four factors for consideration against each other, decisions are now further complicated by measuring transformative use over and against them. Court decisions appear to be ever more subjective and unpredictable, and the heft given to claims of fair use is greater than ever.

This goes far in explaining the current free-for-all atmosphere amongst appropriation artists. Infringement cases are a crap shoot and so many brand artists are at no loss for the financial and legal backing it takes to make a fair use claim.

This is the only explanation for Gavin Brown's initial reaction to a request to interview him about the Panda Appropriations. Although he professed boredom, Mr. Brown took the time to peevishly deride at some length (and in a series of e-mails) what he assumed the story was about:

"The premise of your questions is flawed, misinformed and frankly, banal. Ultimately our response to this subject is: 'so what?'. Everyone enjoyed themselves and the designers got plenty of publicity. Some nice young people had a day out 'protesting' at the gallery. And you get to fill some column inches. Its all part of a beautiful ecosystem. The professed outrage seems selective to me --almost cynical and convenient, perpetuating boring and outdated positions of power and powerlessness. Don't you teenage bloggers call this a 'mash-up' in a different context? And ultimately don't you haters have something better to write about?"

One could only assume that Gavin Brown was vexed by the very notion that anyone could be bothered to discuss such a trivial subject, one which he and most of his peers had dismissed a long time ago as a mere inconvenience.

And, honestly, I understand. Gavin Brown really does not need to be pestered about copyright law. The visual arts are taking a stance: they are exempt in any and every case where they can win the gamble. Which is turning out to be most of the time. Because likely they will not go to court, and when they do, no problem: they settle. If it goes as far as losing, they cut a deal, preferably one which fosters future publicity or a new body of work.

Shepard Fairey & The AP: From Zero Sum to Win-Win

It took two years for Shepard Fairey and the Associated Press to settle their dispute over Fairey's use of (at that time AP photographer) Manny Garcia's 2006 photograph of Barak Obama. Although Fairy's use of the image for his now famous HOPE poster entangled him and the AP in an avalanche of pre-emptive and counter-suites, it has ended very well for both parties.

Fairey and the AP have agreed in their settlement, to share the rights to produce and sell the HOPE poster and related merchandise. Fairey has also agreed to work with the AP on a series of images that will be based on AP photographs. What is more, neither Fairey nor the AP had to make further statements conceding the points made in previous statements wherein Fairy claimed fair use. The one concession that Fairey did make to the AP was that he would not use their photos in future without proper license to do so. Although not all o f the legal details have been ironed out, there is hope that even the continuing AP lawsuit against Obey Clothing, Fairey's apparel marketing company will also end with similar agreements.

What's the take away? The game switched from zero sum to win-win for Fairey and the AP who, matched dollar for dollar, lawyer for lawyer, now have a promo-winning deal and half the profits from sales of the Hope image which, as PaidContent's David Kaplan points out, they've agreed to "keep alive as a marketable item, a year before the next presidential campaign goes into full swing."

Who Loses?

In most arenas these days, profit goes to those who can wield, and sustain, power in court. This is more true in the art world than ever.

Graphic artists are almost never going to be successful contenders because they work pay check to pay check, gig to gig, and in an atmosphere ever more hostile to labor and to copyright ownership. There is plenty to be said about the growing number of difficulties facing graphic artists who, except for a very few stars, compete head to head, often on spec, and for pay rates that have barely budged since the mid 1980s.

A.J. Dimarucot is a freelance graphic artist living in the Philippines with his wife, 10-year old boy and an 8-month old baby girl. His paychecks depend upon the popular appeal of his designs, often measured by votes on the "crowd-sourced" (read that: driven by spec work) Threadless t-shirt website. His freelance career is a clever cobbling together of gigs and contest winnings and a bet on the American dollar's heft continuing apace in his own country. To say that Dimarucot's graphics are his bread and butter is an understatement. They are a strategy for living that can be too easily toppled.

Here is how Dimarucot describes his career:

"Threadless is a t-shirt contest website, so we get paid only if they use our designs and print them on shirts (sometimes hoodies and baby clothes). They basically get the rights to print on apparel. Whenever they use our designs, we get $2,000 for the first run. Every succeeding print run gets us $500 each time. 

For my other projects, I get paid by the project. Normal industry t-shirt prices are around $250-500 per design. I can survive on doing just a few t-shirts a month because the dollar exchange rate is in my favor. That way I can spend time with my family and design on the side."

 

Graphic designers that worked on spec for non-competitively low prices used to be held in contempt by peers and by the rule-makers. The Graphics Artis Guild still sticks to its guns, recommending contracts and competitive pricing and scorning spec work. But it is the case that most graphic artists find themselves in a job market where there is no support for hold-outs. Any job you turn down, because the pay is low or because you resent spec work, WILL BE TAKEN. There is no longer a viable market for professional graphic artists.

This places the commercial artist, the graphic artist, in the very same boat as emerging fine artists. The market is wide open. The competition is stiff. And no one's going to let you get comfortable.

Outside of the feeding frenzy, the man with the harpoon waits to take your fish. Calmly, without rancor: he's just fishing from the vast common pool.