Jeff Koons’ balloon dog case blows.

31 03 2011

And in other news, clowns the world over can breathe a collective sigh of relief – Jeff Koons has dropped the case in which he claimed copyright over balloon dogs. Koons sued San Francisco bookshop, Park Life, for selling book ends fashioned to look like balloon dogs, claiming that they infringed his copyright and intellectual property rights. In their response, Park Life’s lawyers observed that: “as virtually any clown can attest, no one owns the idea of making a balloon dog, and the shape created by twisting a balloon into a dog-like form is part of the public domain”.


(Image via


Prince and Gagosian up the creek without a paddle, part 2

31 03 2011

A small addenda to yesterday’s post about the finding against Richard Prince and Gagosian Gallery. Patrick Cariou, who successfully challenged Prince for infringing his rights as an artist, has given an interview to Andrew Goldstein of ArtInfo Read the rest of this entry »

Richard Prince and Gagosian up the canal without a paddle: copyright or wrong?

31 03 2011

In a ruling that should strike fear into the collective heart of artists worldwide, Richard Prince and Gagosian Galleries have failed in their defence of the case brought against them by photographer Patrick Cariou for copyright infringement (Cariou’s photo is on the far left, and Prince’s painting is on the right).

Prince acknowledged that he used at least 41 of Cariou’s photos from his publication, Yes, Rasta, as the basis for his Canal Zone series of paintings, exhibited at Gagosian’s West 24th Street branch in 2007. Echoing the case brought against Shepard Fairey by Associated Press for his use of Manny Garcia’s photo of Obama in Fairey’s now iconic Hope poster (a case that was settled earlier this month), Cariou claimed that Prince didn’t satisfy the terms of ‘fair-use’ under copyright legislation.

In summary, four main tests are applied to determine whether or not the ‘fair-use’ defence applies (the full finding is available here). The first point for consideration is whether or not the artwork is sufficiently ‘transformative’ – in the words of the presiding judge, the derivative artwork must result in something that is ‘plainly different from the original purposes for which it was created’. The precedent to which the judge referred was established in the landmark case, Rogers v. Koons, in which Jeff Koons unsuccessfully defended a similar claim made by photographer Art Rogers.

One of the other factors that came into play in the ruling is the ‘nature of the copyrighted work’, meaning that the appropriation of design work produced for commercial purposes is more likely to be covered by the ‘fair use’ defence than ‘fine’ art. Although the defendants attempted to claim that Cariou’s work was more documentary than creative, the judge rightly ruled that fine art photography is rightly protected under the copyright legislation. Cariou could also show that his own market had been substantially damaged by Prince’s appropriation of his work – although he had booked an exhibition of prints from Yes, Rasta with Manhattan dealer, Christiane Cele, she cancelled the exhibition because, according to papers lodged in the hearing, she did “not want to be seen to be capitalizing on Prince’s success and notoriety…and did not want to exhibit works which had been ‘done already’ at another gallery”.

The outcome? The defendants have been ordered to: “deliver up for impounding, destruction, or other disposition, as Plaintiff determines, all infringing copies of the photographs, including the paintings and unsold copies of the Canal Zone exhibition book, in their possession, custody, or control and all transparencies, plates, masters, tapes, films, negatives, discs and other articles for making infringing copies.” All current and future owners of Canal Zone paintings must also be informed that the artworks infringe Cariou’s copyright, and that they cannot legally be displayed.

What does this mean for artists? For one thing, best seek copyright permission before making significant use of someone else’s work in your own. Or, only make use of material that is not subject to copyright. If you find yourself getting defensive about an artist’s right to free and unrestricted expression, just give yourself a gentle reminder that the purpose of the law is to protect all artists’ moral rights – that is, the right to be acknowledged as the maker of an artwork. It’s been this way in the music industry for ages. I’m open to any rational arguments as to why the visual art world should be exempt from these laws.

This is all part of a very interesting ongoing discussion about whether or not art, and artists in particular, are above the law. This is always the question that pops up when the “art or porn” debate rears its ugly head – the Bill Henson fracas is the latest example of this. Until very recently, artists have usually been given a leave pass when it comes to laws such as defamation, pornography, and copyright. These test cases suggest that the times might be a’changing.  That this ruling has gone through in the jurisdiction that is the strongest advocate for freedom to speech is particularly telling.

(image: ‘The Art Newspaper’)

To save, or not to save? Major Melbourne work by Keith Haring at risk. Again.

21 02 2011

In today’s Age, Thomas Dixon, who now chairs the Victorian Public Art Committee of the National Trust, and was the Chief Conservator at the NGV until his retirement in 2006, writes an impassioned plea for the preservation of the fast-deteriorating mural painted by American street artist, Keith Haring, located on the building that used to house Collingwood TAFE (pictured at left). It’s an imposing work of art, made all the more significant by the fact that Haring, who was out painting the subway stations and laneways of Manhattan when Banksy was but a glint in his (or her?) mother’s eye, died tragically early and a great bulk of his major work was exposed to the elements and has since disappeared or been damaged beyond repair. In terms of his corpus, the TAFE mural, which he painted during a visit to Melbourne in 1984, is very important indeed. In the British magazine, The Art Newspaper, it was described as ‘the last in the world painted entirely by his hand’.

Elsewhere I’ve pondered the question of preserving and documenting street art, including the debate for and against intervention in the case of Keith Haring’s mural (here, and here). In summary, it comes down to deciding whether or not the integrity and preservation of the art object (the mural) should outweigh the value we place on defending the artist’s intention. Haring painted the mural outdoors, exposed to the elements, and did so because its impermanence/transience and eventual deterioration was an important part of the work itself. If the work is preserved or repainted, the argument goes, it undermines the artist’s message. Anyways, after a heated debate in the mid 1990s, it was decided that the best path was to treat the mural in order to halt any further deterioration. According to Dixon, the periodic maintenance that was required to extend the artwork’s life was not undertaken, resulting in further damage. It’s estimated that it will cost about $25,000 to stabilise the work, with about $1,000 annually to maintain its condition. A pittance, Mr. Baillieu, surely? How about making this your first order of business as Victoria’s new Arts Minister?

Politicians aside, fear not! Direct from its salvation of Egypt from the clutches of dictatorship, the social media revolution has joined the fight! Yes – there is a Facebook page, Save the Keith Haring Mural’ with 5,334 members. Join the fight now!

As an aside, everyone seems to forget the (admittedly far more modest) Angel that Haring painted on the wall of Geelong Grammar’s Toorak campus. It was originally on the external wall of one of the Victorian-era school buildings, but after the redevelopment of the site the mural was enclosed in a central classroom in the Early Learning Centre (kindergarten, for the uninitiated). Thank the heavens on high that whoever was overseeing the renovations took it upon themselves to ensure the mural survived the extensive remodelling of the building. It is now preserved under a sheet of perspex, and is loved by teachers and children alike; a benevolent and gentle presence in a space filled by little people… and, yes, another in my long line of terrible phone photos, showing said angel, and some contributions from the kinder kids – reflections on the angel in their midst.

The room is known as ‘The Angel Room’. Not ‘Keith Haring’s Angel Room’, or ‘The Haring Room’. Just ‘The Angel Room’. It may be far removed from the artist’s vision, but in this context the artwork has assumed a new life and relevance to the people who live with it every day. It will endure in the minds of hundreds of little people, who grow into bigger people – many of who most probably don’t even know who painted the angel, or why it’s there. Which probably doesn’t really matter, one way or another. The Angel really has assumed a life of its own. When I’m feeling particularly sentimental, to me this seems to be a very good argument in favour of preserving works of art like this one.

I could be very wrong, but I like to think that Keith Haring would have approved.

(images: Keith Haring ‘Angel’, by me; Keith Haring, ‘Collingwood TAFE mural’, via ‘Save the Keith Haring Mural’ Facebook page)