would probably never get done if all the details of the negotiations were made public
Sure, a lot of things are faster and easier if you don't tell the public about them - same goes for mass surveillance, and torture programs. That's not a good reason to keep it secret (or, well, it is from the government's point of view -- but it's not a reason the public should accept.)
Let's wait on see what's in it before going ballistic.
It will be too late. When we see what's in it, it'll be within days of a vote in congress, with barely enough time for people to make their opinion on it heard and virtually no chance of that opinion being considered after all the negotiating work has already been done.
Plus, that's just a stupid way of looking at it. What if, as you want us to still consider as a possibility, it turns out that lots of this agreement IS really great and promotes trade and we all love it -- but there's also, for example, a big Intellectual Property provision that seems really dangerous and problematic (almost a certainty). You'd rather the public wait until its only choice is between scuttling the entire agreement or swallowing the bad provisions, rather than having input at the stage where the details are still being decided?
I don't really think it's about the payment, it's just that in this particular case, the payment serves as a good demonstration of how wildly Prince changed the context of this art. The argument in this instance might be harder to make if no galleries were taking the pieces and no rich folk were buying them, but not impossible.
Plus, remember, I absolutely believe the opposite should hold true (even if the sad fact is that it often doesn't). If you go to a gallery where a painting is on sale for $90k and snap a photo of it to share to Instagram, in my mind that is clearly transformative work as well: your shared instagram pic has an entirely different purpose, character and meaning than the five-figure painting.
For what feels like the ten-millionth time: it's about the context of the art, it's "character, purpose and meaning", not the physical act of format-shifting or the material changes to the content.
If people are just going to keep ignoring that and spouting this nonsense about how it's the same as ripping a CD, then I don't know what else to say...
Also I think you have that Dickens story wrong. He sued over the Christmas Carol thing and won, then the publisher declared bankruptcy and Dickens ended up stuck with the legal bills.
He never went bankrupt. He made a good living his entire life, often through speaking & reading tours more than publication. He died wealthy, leaving substantial sums to his children and ex-wife, and a meaningful bonus to all his servants (which, yes, he had). So let's not go shedding tears and painting a picture of him as one of his own starving urchins and pretending a lack of strong copyright is at fault.
But Prince isn't a "publisher", really. He's not mass-producing copies of these works and dominating the market for them. He's transformed them into single pieces that are being sold in an entirely different market (high art) than the one the originals could be considered to be a part of. Moreover, the pieces were already published - openly, freely, widely and publicly - on Instagram.
I doubt there's a single piece of business that Prince blocked the photographers from getting. I doubt one of the people who paid $90k for these works would have bought the photo from the originator, at either the same price or a different one. If there's any measurable effect on the market for the photographers' work here, it's almost certainly growth. Prince clearly contributed more to the market value of these works than the photographers - if you put a blank canvas signed by Prince, and one of these photo-prints not created by him, on sale next to each other at an art gallery... well, I know which one would sell for more.
So is that really what copyright was created to solve?
I don't think you can zoom past the first factor quite so quickly.
The "purpose and character" question is not solely about commercial use. It's also where the question of transformative works are addressed. Prince's past work using appropriated photos has been found transformative under that factor, and it's possible this work would be as well. It's also clear precedent in fair use law that if a work passes the transformative test and has a different "purpose and character", the importance of all the other factors including commercial use is diminished.
Its funny you look for an objective line in such a subjective area
On that front you misunderstand me. My point was that I agree: there is no objective line to be drawn, which is why I say it's important for Prince's work to be fair use -- not because I particularly care if I get to see that work itself, but because I see no way that anyone could draw a line between it and work I do care about.
Many a work, many a whole artistic movement, has been similarly derided. Above you gave credit to DuChamp -- but how many people have called his work worthless over the years?
I'm no art expert, and as far as I can tell art experts are never unanimous. Judges are neither. So I'm not prepared to rule out artwork just because I can't personally see its value (which I admit I can't in this case), nor do I think anyone else should be able to. The question to me is not whether this work needs to exist, but whether the idea that it's illegal would cut off avenues of art that I believe should be explorable. I can't find any way to draw an objective line between this and other appropriation/remix art that I love and believe to be incredibly original and culturally valuable - whether that's Mr. Burns: A Post-Electric Play (which I recently saw and was amazing) or It Takes A Nation Of Millions To Hold Us Back (which never would have existed if it didn't slip through before the courts clamped down on transformative music) or Mother Of All Funk Chords (which is still around, unchallenged, solely by the virtue of the kindness of strangers).
For those things and more like them, I'll gladly live with Richard Prince.
I suspect you're being glib. Virtually every single thing about the "purpose, character and meaning" of songs on your phone and songs on a CD is identical. Conversely, there are clear differences in purpose, character and meaning between these photos on Instagram and these photos as a high-end gallery exhibit.
Now, I absolutely grant you: it can be argued that those differences still do not elevate to the level of a transformative work. But if it was decided by a judge that they do -- a decision I would personally support -- it would by no means "gut copyright law" or render straightforward music piracy legal under fair use.
I think what James means is that if you legally defend the authenticity of signatures - whether by allowing them to be trademarks, or arguably even through fraud and misrepresentation laws -- then they gain an element of artificial, law-created scarcity as well.
Not sure if you read my comment, but you are ignoring the concept of transformation via changed context and again focusing on measurable transformation to the content.
I wouldn't be surprised if several appropriation artists, and many galleries that feature them, hypocritically balked at that idea but -- yeah, in my mind, that should be fair use too.
Because the concept of a "transformative work" does not merely apply to alteration of the content itself. It is a question of whether the new work "supersedes" the old work and replaces it (not transformative) or whether it changes the "purpose, character and meaning" of the old work. This can hinge on questions of context, not just content.
For example, a critic who quotes large portions of a work in an analysis or review does not alter the content quoted, but does place it in a new context. The analysis or review serves a new purpose, different from the original work itself, and does not serve as a substitute for it, and thus is considered transformative.
There's still debate to be had about whether what Prince did qualifies, but the simple fact that "the picture itself was not at all altered" does not immediately disqualify it either.
It feels more like he's poking the whole fair use discussion right in the eye.
The thing is... I kind of think that's something that badly needs to happen.
Just now, I looked at about 5 different blog posts which, though they were heaping the hate on Prince, noted that "he is protected by fair use." That's amazing! I have never seen so many random opinion pieces even acknowledge the existence of fair use, let alone see it as a foregone conclusion! Now, it's odd and ironic and potentially bad that they are also deciding they don't like fair use because of this, but I'm not so sure that opinion will hold upon deeper inspection. If a poke in the eye is what it took to start a real conversation about fair use, I'm all for it...
I think there's a valid argument to be made that, in some circumstances (especially popular ongoing series) a series name or title character name, and potentially design aspects, are also a brand-identifying marks with the potential for others to intentionally bank on customer confusion (like if my book has a giant "Harry Potter And The..." title with a cover illustration modelled after Rowling covers, while I also opt to leave the author name off the cover altogether -- then I think that would be acting in bad faith on my part). But I agree that the author's name is really the most important part.
Of course, the really ironic part is that fans are often more likely to produce good expanded material that's faithful to the brand than what gets produced under the current licensing regime on many properties -- as any kid who has received a crappy licensed videogame or a hastily-made straight-to-video movie of a favourite cartoon from a clueless but well-meaning relative knows very clearly.
I actually very much like the concept of applying more trademark-like thinking to creative works in commerce, but the way you frame it here sounds very dangerous and raises too many questions.
Do all characters constitute brands? And since we're talking about trademark, I assume we're just talking about the character's name or some other identifying mark — so can nobody re-use any character name? Obviously that's absurd, but then - where precisely is the line drawn? Can I write another book that uses Sherlock Holmes as a character so long as his name isn't on the cover or on the dust-jacket, because then I'm not selling based on his brand? Or conversely, can I write a book with a character that is exactly Sherlock Holmes just with a different name? Can I have other characters in the narrative comment on how he's just like Sherlock Holmes and then start calling him that as a nickname?
It's just too crazy a can of worms. I do see a role for more trademark-like stuff, but it would be about ensuring there's no confusion as to who created a work - and frankly I think that could eliminate the need for all sorts of copyright. So while I could, say, write a story with Harry Potter in it, even as a main character, there would be limits to prevent me from passing that book off as a new Rowling-penned entry in the series. Perhaps that means she is solely allowed to label Potter books "Official" or use some specifically worded brand-tag like "A Harry Potter Novel", or perhaps it even means that I would need to label mine "Unofficial".
Because really, once the chance of authorial confusion is eliminated, what real reason is there that anyone should be prevented from re-using characters, even current ones?
On the post: WikiLeaks Wants To Crowdsource $100K Reward For Leak Of TPP Text, As Doubts Grow About Agreement's Value
Re: Re: Re: Not sure what all the hubbub is about...
On the post: WikiLeaks Wants To Crowdsource $100K Reward For Leak Of TPP Text, As Doubts Grow About Agreement's Value
Re: Not sure what all the hubbub is about...
Sure, a lot of things are faster and easier if you don't tell the public about them - same goes for mass surveillance, and torture programs. That's not a good reason to keep it secret (or, well, it is from the government's point of view -- but it's not a reason the public should accept.)
Let's wait on see what's in it before going ballistic.
It will be too late. When we see what's in it, it'll be within days of a vote in congress, with barely enough time for people to make their opinion on it heard and virtually no chance of that opinion being considered after all the negotiating work has already been done.
Plus, that's just a stupid way of looking at it. What if, as you want us to still consider as a possibility, it turns out that lots of this agreement IS really great and promotes trade and we all love it -- but there's also, for example, a big Intellectual Property provision that seems really dangerous and problematic (almost a certainty). You'd rather the public wait until its only choice is between scuttling the entire agreement or swallowing the bad provisions, rather than having input at the stage where the details are still being decided?
On the post: Suicide Girls Reappropriate Art That Appropriation Artist Richard Prince Appropriated -- At A 99.9% Discount
Re: Re: Re:
Plus, remember, I absolutely believe the opposite should hold true (even if the sad fact is that it often doesn't). If you go to a gallery where a painting is on sale for $90k and snap a photo of it to share to Instagram, in my mind that is clearly transformative work as well: your shared instagram pic has an entirely different purpose, character and meaning than the five-figure painting.
On the post: Suicide Girls Reappropriate Art That Appropriation Artist Richard Prince Appropriated -- At A 99.9% Discount
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If people are just going to keep ignoring that and spouting this nonsense about how it's the same as ripping a CD, then I don't know what else to say...
On the post: Suicide Girls Reappropriate Art That Appropriation Artist Richard Prince Appropriated -- At A 99.9% Discount
Re: Yes
He never went bankrupt. He made a good living his entire life, often through speaking & reading tours more than publication. He died wealthy, leaving substantial sums to his children and ex-wife, and a meaningful bonus to all his servants (which, yes, he had). So let's not go shedding tears and painting a picture of him as one of his own starving urchins and pretending a lack of strong copyright is at fault.
On the post: Suicide Girls Reappropriate Art That Appropriation Artist Richard Prince Appropriated -- At A 99.9% Discount
Re: Yes
On the post: Suicide Girls Reappropriate Art That Appropriation Artist Richard Prince Appropriated -- At A 99.9% Discount
Re:
I doubt there's a single piece of business that Prince blocked the photographers from getting. I doubt one of the people who paid $90k for these works would have bought the photo from the originator, at either the same price or a different one. If there's any measurable effect on the market for the photographers' work here, it's almost certainly growth. Prince clearly contributed more to the market value of these works than the photographers - if you put a blank canvas signed by Prince, and one of these photo-prints not created by him, on sale next to each other at an art gallery... well, I know which one would sell for more.
So is that really what copyright was created to solve?
On the post: Suicide Girls Reappropriate Art That Appropriation Artist Richard Prince Appropriated -- At A 99.9% Discount
Re:
On the post: Richard Prince Continues To Push The Boundaries Of Copyright Law In Selling Other People's Instagram Selfies
Re:
The "purpose and character" question is not solely about commercial use. It's also where the question of transformative works are addressed. Prince's past work using appropriated photos has been found transformative under that factor, and it's possible this work would be as well. It's also clear precedent in fair use law that if a work passes the transformative test and has a different "purpose and character", the importance of all the other factors including commercial use is diminished.
On the post: Richard Prince Continues To Push The Boundaries Of Copyright Law In Selling Other People's Instagram Selfies
Re: Re: Re: Re: Re: Re: Re: Re: Re: Hardly
On that front you misunderstand me. My point was that I agree: there is no objective line to be drawn, which is why I say it's important for Prince's work to be fair use -- not because I particularly care if I get to see that work itself, but because I see no way that anyone could draw a line between it and work I do care about.
On the post: Richard Prince Continues To Push The Boundaries Of Copyright Law In Selling Other People's Instagram Selfies
Re: Re: Re: Re: Re: Re: Re: Hardly
I'm no art expert, and as far as I can tell art experts are never unanimous. Judges are neither. So I'm not prepared to rule out artwork just because I can't personally see its value (which I admit I can't in this case), nor do I think anyone else should be able to. The question to me is not whether this work needs to exist, but whether the idea that it's illegal would cut off avenues of art that I believe should be explorable. I can't find any way to draw an objective line between this and other appropriation/remix art that I love and believe to be incredibly original and culturally valuable - whether that's Mr. Burns: A Post-Electric Play (which I recently saw and was amazing) or It Takes A Nation Of Millions To Hold Us Back (which never would have existed if it didn't slip through before the courts clamped down on transformative music) or Mother Of All Funk Chords (which is still around, unchallenged, solely by the virtue of the kindness of strangers).
For those things and more like them, I'll gladly live with Richard Prince.
On the post: Richard Prince Continues To Push The Boundaries Of Copyright Law In Selling Other People's Instagram Selfies
Re: Re: Re: Re: Re: Hardly
Now, I absolutely grant you: it can be argued that those differences still do not elevate to the level of a transformative work. But if it was decided by a judge that they do -- a decision I would personally support -- it would by no means "gut copyright law" or render straightforward music piracy legal under fair use.
On the post: Richard Prince Continues To Push The Boundaries Of Copyright Law In Selling Other People's Instagram Selfies
Re: Re: Re: Re:
On the post: Richard Prince Continues To Push The Boundaries Of Copyright Law In Selling Other People's Instagram Selfies
Re: Re: Re: Hardly
On the post: Richard Prince Continues To Push The Boundaries Of Copyright Law In Selling Other People's Instagram Selfies
Re: And so vice versa is acceptable?
On the post: Richard Prince Continues To Push The Boundaries Of Copyright Law In Selling Other People's Instagram Selfies
Re: Hardly
For example, a critic who quotes large portions of a work in an analysis or review does not alter the content quoted, but does place it in a new context. The analysis or review serves a new purpose, different from the original work itself, and does not serve as a substitute for it, and thus is considered transformative.
There's still debate to be had about whether what Prince did qualifies, but the simple fact that "the picture itself was not at all altered" does not immediately disqualify it either.
On the post: Richard Prince Continues To Push The Boundaries Of Copyright Law In Selling Other People's Instagram Selfies
Re: But are the works really transformative?
The thing is... I kind of think that's something that badly needs to happen.
Just now, I looked at about 5 different blog posts which, though they were heaping the hate on Prince, noted that "he is protected by fair use." That's amazing! I have never seen so many random opinion pieces even acknowledge the existence of fair use, let alone see it as a foregone conclusion! Now, it's odd and ironic and potentially bad that they are also deciding they don't like fair use because of this, but I'm not so sure that opinion will hold upon deeper inspection. If a poke in the eye is what it took to start a real conversation about fair use, I'm all for it...
On the post: Sherlock Holmes And The Case Of The Never Ending Copyright Dispute
Re: Re: Re: Re: Re: Trademark
Of course, the really ironic part is that fans are often more likely to produce good expanded material that's faithful to the brand than what gets produced under the current licensing regime on many properties -- as any kid who has received a crappy licensed videogame or a hastily-made straight-to-video movie of a favourite cartoon from a clueless but well-meaning relative knows very clearly.
On the post: Sherlock Holmes And The Case Of The Never Ending Copyright Dispute
Re: Trademark
Do all characters constitute brands? And since we're talking about trademark, I assume we're just talking about the character's name or some other identifying mark — so can nobody re-use any character name? Obviously that's absurd, but then - where precisely is the line drawn? Can I write another book that uses Sherlock Holmes as a character so long as his name isn't on the cover or on the dust-jacket, because then I'm not selling based on his brand? Or conversely, can I write a book with a character that is exactly Sherlock Holmes just with a different name? Can I have other characters in the narrative comment on how he's just like Sherlock Holmes and then start calling him that as a nickname?
It's just too crazy a can of worms. I do see a role for more trademark-like stuff, but it would be about ensuring there's no confusion as to who created a work - and frankly I think that could eliminate the need for all sorts of copyright. So while I could, say, write a story with Harry Potter in it, even as a main character, there would be limits to prevent me from passing that book off as a new Rowling-penned entry in the series. Perhaps that means she is solely allowed to label Potter books "Official" or use some specifically worded brand-tag like "A Harry Potter Novel", or perhaps it even means that I would need to label mine "Unofficial".
Because really, once the chance of authorial confusion is eliminated, what real reason is there that anyone should be prevented from re-using characters, even current ones?
On the post: Funniest/Most Insightful Comments Of The Week At Techdirt
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