The Drama of Fair Use

Laura Quilter has a wonderful post about a moving episode at the recent Comedies of Fair Use conference in New York.

“JoyWar” began when Joy Garnett appropriated a photograph she found on the Internet, and repainted it. Shortly after exhibiting it, she got a cease-and-desist letter from the photographer, Susan Meiselas. Joy’s art rapidly became a cause celebre among Internet artists and activists, who reposted Joy’s art and remixed it with many new works.

Susan and Joy had never met before the conference, but they both agreed to come and tell their story in a joint session. . . .

The striking thing was the obvious pain that both women felt at the conflict. Though their artistic goals and methods clashed, both Susan and Joy were thoughtful and sincere. Susan, for instance, really seemed to feel that she was possibly “old-fashioned”; that she just didn’t get the new methods of appropriation. Joy, for her part, seemed to really appreciate Susan’s goals and interests; but stood firmly on her own principles. It really seemed in some respects a tragic conflict of interests, because, yes, Susan had real interests at stake. You couldn’t but respect Susan’s interests and the respect that she herself had for the subject of her work. I’m certain it took tremendous courage for Joy and Susan to come together in a public forum, after such a well-publicized conflict. And it’s a testament in particular to Susan’s courage and honesty that she presented her beliefs and reasons so articulately and passionately in the face of a potentially hostile audience.

Some thoughts after the jump.

There is a sense in which we might draw the conclusion that the costs of “progress” have real faces, and because copyright gives us fair use the interests of the original “author” have to give way in the end. Too bad, so sad, as one of my colleagues sometimes puts it. And I think that would be an insufficiently nuanced lesson here; while Joy’s legal claim may be defensible, the ethical claims of the two artists — and of the other interests that each represents — are in equipoise. Storytelling — individualized, personalized storytelling — is among the most powerful forms of argument that we possess, and evidence of personal courage is another, and this conversation blends them eloquently and persuasively. For now, I resolve the dilemma by not resolving it, except to suggest that copyright is simply the wrong language to speak — even, as Laura points out, in copyright’s more expanded “moral rights” forms.

Copyright is the right language for many things, but for this situation, it’s not. I don’t have a good vocabulary for this, let alone a syntax that allows me to process the claim. Maybe some notes will help: For example, the rhetoric that often attaches to “strong” copyright has been appropriated here by the appropriator. Where the vice of copyright formalism is that “the work” is decontextualized (sometimes appropriately, sometimes not) and made to embody an economy as an “object” that is used to obstruct all activities that might disrupt that economy, here Joy — the appropriator — makes decontextualization precisely her point. Yet the economy she disrupts isn’t monetary; it’s emotional. And I call it an emotional economy because Susan’s relationship to the photograph is made complex by her relationship to its subject, and to its context.

Hmmm. I’ve wandered away from copyright, but I’ll push on.

So is there a way to incorporate Joy and her work into that economy — to complement the economy created by Susan and her subject in the first place, rather than to disrupt it? Attribution, in the moral rights sense, is both too much (is this really what Susan wants?) and too little (it doesn’t solve the economic issue). “Integrity” is likewise both over- and under-inclusive. If Joy were simply to reproduce the photo, unmodified, in some different context, I suspect that Susan would still feel harm.

I don’t propose to speak for Susan, but I wonder whether she would object to Joy’s reuse of her photograph, at least to the same degree, if Joy’s photograph bore witness in a sense that was recognizable to Susan’s audience. And if so (back to earth, here), is there a way to inscribe a “right” to that recognition in law somehow? From Susan’s point of view, Laura’s description of the episode almost sounds like an emotional distress claim (which under current law would almost certainly be preempted by copyright, but which otherwise strikes me as plausible), though it’s a form of distress associated with a lost relationship, not with the unconscionable shock and horror that lawyers typically associate with “emotional distress” damages. Hmmm again. From Joy’s point of view, how is she to know in advance that this is a risk associated with her reuse of Susan’s photograph? Is there a way for Susan to signal existence of the complex emotional economy that is embedded in the photograph? If I’m wandering into an area of tort law (a duty to avoid causing foreseeable and avoidable harm ), how does the originator make the harm foreseeable? Does Susan have some kind of obligation here? By sharing her economy with the world in some sense, does she run the risk (I almost wrote “accept the risk”) that the world will build on that economy? I tend to think so, but I also tend to think — again, speaking speculatively and not in any sense about current copyright doctrine — that the “building” should have limits. If so, though, where do we find those?

I’ll stop there. That’s enough speculating for one night. Thanks to Laura, and to Joy and Susan, and to the organizers of the Comedies conference, for such thought-provoking material.