Artistic intent, money, etc.

What were Cauty and Drummond's intentions in their "art"? Why did they abandon a successful pop music career as "The Justified Ancients of Mu Mu" ('The JAMs'), "The Timelords", "The Kopyright Liberation Front" ('The KLF'), "The Forever Ancients Liberation Loophole ('The FALL') and found the "K Foundation"? At least one point of view is that "[w]hat Cauty and Drummond were primarily concerned with was money: money as art, art as money. The possibility of meaning beyond money. To challenge the power of money. And if none of that makes sense, maybe that was the intention." That hardly seems far-fetched to me. Drummond himself, speaking of his and Cauty's plan to burn a million pounds of cash, stated that "'We had nothing better to do with the money. Even if it's not art, it's the most important statement we can make,' said Drummond. 'We needed to express something about money and we wanted to push it through art.'"

More than one person I respect was horrified at the stunt. Think of the good that money could do in building projects to bring water to villages in Kenya without access to that most basic of human needs?

K Cera Cera may not be about money, but the question of intent certainly does relate to whether that song constitutes art or theft and, more generally, to the point I raised earlier today: are we to ground our determination of whether a work is "transformative" in the "artist's" own expressed purposes? As previously noted on this blog, "[w]hether [Jeff] Koons will be seen in time as a critical commentator in the tradition of the Dadaists and a genuine leader in the controversial tradition of the avant-garde, or merely as a fashionable purveyor of meaninglessness and banality, remains to be seen."

I simply cannot fathom the Second Circuit's reliance in these determinations on the artist's expressed intent.

And yet I feel (and may well be wrong) that Koons' Niagra and the K Foundations K Cera Cera do not constitute copyright infringements. Why? Aye, there's the rub. One point, I suppose, is that neither has any conceivable impact on any commercially valuable primary or derivative markets for the copyrighted work. K Cera Cera has not and will not stop anyone from licensing the rights to cover Q Sera Sera. Pink Martini has done their own "dark" interpretation of the song, and it remains a valuable product for licensing to this day. Moreover, the KLF's K Cera Cera is so obscure and seems intended to express such an abstruse point that I can't imagine it's devalued Que Sera Sera for licensing in a commercially valuable market for music mashups. Similarly, Niagara cannot conceivably have an impact on the value of the commercial photograph it appropriated. But is it all about economics? Surely, U.S. law doesn't give the artist such control over her creation that she can keep it from being used in ways she doesn't like merely because she doesn't like them. The First Amendment seems to preclude such "morala rights." As the Second Circuit stated in Blanch v. Koons, Copyright law must in part protect the ability of authors, artists, and the rest of us to express them or ourselves by reference to the work of others. 467 F.3d at 250. Que Sera Sera is much more than a song. It is a part of our culture and the feelings and thoughts it evokes as part of our culture are far, far larger than anything created by its composers. Why in the world would we be prevented from using it as a symbol to evoke those feelings and thoughts as long as we are not diminishing the incentive of the composers to compose the song in the first place?

So is it all about the money? That would be ironic, given that the KLF and the K Foundation are the genesis of this blog's ongoing discussion. Is it about the artist's intent? I cannot make sense of that. And who, after all, are we protecting?