Fair Use as Art Itself

Bill Patry’s thoughtful account of his presentation and discussion at a recent gathering of the College Art Association reminds me of the artist Christo — he of wrapping bridges and buildings and installing gates and fences.  More after the jump.

Bill writes:

If there are tensions between art and copyright, let’s locate the source of the tension where it belongs: in differences within the art community. The tension is not externally imposed by the legal community. Nor is such tension peculiar to the arts. Harold Bloom’s “The Anxiety of Influence” is a good source for poetry. Law didn’t create such tensions and it can’t solve them other than on a case-by-case basis. . . . Appropriation art of the Sherry Levine copying of Walker Evans was met with great skepticism as fair use: making a conceptual point as an artist is, after all, different than making a transformative use in copyright, and I would say it was on this point that two groups: art historians favorable to art appropriation and non-partisan lawyers (that is those of us not representing anyone in such disputes), had and probably will always have the greatest trouble.

It is possible that this tension is not a weakness of copyright, but one of its strengths.  That is, copyright law is constituent of the artistic process, not external to it, and via fair use (among other doctrines) copyright offers a crucible for mediating between multiple conceptions of “art.” 

Legal-conflict-as-constitutive-of-culture provides the Christo tie-in.  (This is one of the handful of very concrete things that I recall from law school.  I picked up the anecdote from Bob Ellickson, now at Yale.)  Christo endured years of zoning battles with local authorities before erecting his “Running Fence” in Sonoma County, California.  He later said: “‘It’s hard to explain that the work is not only the fabric, steel poles, or Fence. Everybody here [at the zoning hearing] is part of my work. Even those who don’t want to be are part of my work….”‘ (quoted in Milner S. Ball, Good Old American Permits: Madisonian Federalism on the Territorial Sea and Continental Shelf, 12 ENVTL. L. 623, 656 (1982).

One thought on “Fair Use as Art Itself

  1. Absolutely. There’s no point “outside law” one can create…Julie Cohen’s recent piece on copyright & creativity makes this point in an interesting way.

    Advocating a more Marxist perspective, Julian Stallabrass argues that “culture’s status as a commodity is the most important thing about it” (in Gargantua). Law is the key to the commodification.

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