Fair Use or Abuse? - by Ennid Berger

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In law, it’s called “fair use.” In art, “appropriation.” With either appellation, the issue is the same – is it acceptable to copy someone else’s original image and make it your own? My position is that blatant copying without regard for the rights of the original artist should be prohibited. As a photographer, I shudder to think of another artist taking my image and re-photographing it to create a new work of art.

Some famous contemporary artists are well-known for copying the works of others and calling it “appropriation art.” Sherrie Levine and Richard Prince have made a living by either photographing other artists’ photographs and using them as their own (Levine), and/or enlarging the image and claiming it as an original (Prince). Richard Prince is perhaps more visible to the general public. Most recently a French photographer, Patrick Cariou, filed a copyright infringement suit against Richard Prince, accusing him of “borrowing” at least twenty photographs for use in a series of collage/paintings. Mr. Prince also made the news last year when it was revealed that his cowboy images were re-photographed from “Marlboro Man” cigarette ads. In a 2005 interview in “New York Magazine,” Prince claimed that using other people’s images was, “sort of like beachcombing.” 


The issue of “fair use” and image appropriation is once again in the news. The Associated Press has raised objections to the re-use of its now famous photo of President Obama which has been distributed everywhere by street artist Shepard Fairey. Fairey has "turned the tables," and is suing the AP, asking for a declaration that he used the photo only as a reference, and that he is protected under the fair-use exception to copyright law. This exception, according to Section 107 of the United States Copyright Law, protects the limited use of copyrighted materials for purposes including criticism, comment, news reporting, teaching, scholarship and research. It seems to me that this overly-broad exception to the law is sometimes interpreted to mean that, with the right legal representation, it becomes permissible to copy and re-use someone else’s work.

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Integrity in Art - by Ennid Berger

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     In times when thoughts of money are paramount for many, I wonder whether there is still a place for art created in the spirit of creation rather than art created for profit. In that light, I was recently fortunate to attend screenings of two documentaries about the creations of the Swiss kinetic sculptor, Jean Tinguely. Tinguely spent twenty years in the forests of Fontainebleau collaborating with his wife, the artist Nikki de Saint Phalle, and a coterie of sculptors and welders, creating a magical Cyclops, a giant seventy-five foot high head. This was not art as Product in the Warholian sense, or as more currently promoted by the artist/financial wizard, Damien Hirst.  This was self indulgent, donation dependent, creative, unsaleable art. The head itself was donated to and accepted by the government of France and is currently overseen by a private foundation. Tinguely’s giant rusted structure rose in the forest, true to the intent of its creator; it was art for art’s own sake. The head is replete with interior references to the work of other artists like Kurt Schwitters, Marcel Duchamp and Louise Nevelson, and it is filled with inclusions by Tinguely, Saint Phalle, Larry Rivers, Arman, Rico Weber, Giovanni Posdeta and Robert Rauschenberg.  

     Today, Tinguely’s rusted and rough satire stands true as a comment on the overproduction of material goods in our consumer driven society. This monolith in the forest reminds us that art can be other than the slick, manufactured look favored by a plurality of contemporary mid level galleries and art purchasers. Perhaps, even more appropriate to the theme of art as business, Tinguely’s large construction, “Homage to New York,” was assembled in 1960 with the intent of self-destructing in the sculpture garden of the Museum of Modern Art.  Its explosion and eventual burning was a variation on a theme for this artist who created a series of sculptures in the 1950’s that spewed forth abstract paintings when viewers inserted a coin into the appropriate slot.  In Tinguely’s own words, "art is a form of manifest revolt, total and complete....We're against all forms of force which aggregate and crystallize an authority that oppresses people...we oppose all forms of force emanating from a managing, centralizing political poser."  I am not sure if today's materialistically driven art world retains the possibility of arts as a revolutionary statement of ideals.

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