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?

Artistic intent, art interpretation, and the transformative nature of appropriation art

Are we really going to require an inquiry into an appropriation artist's purposes in determining whether the appropriation is "transformative"? As Sister Wendy Beckett explains in the Encyclopedia Britannica Online, in words that are so well accepted they are almost trite,

The passageway provided by art is very wide. No single interpretation of art is ever “right,” not even the artist's own. He or she can tell us the intent of the work, but the actual meaning and significance of the art, what the artist achieved, is a very different matter. (It is pitiable to hear the grandiose discussions of artists' work by the least talented of our contemporaries.) We should listen to the appreciations of others, but then we should put them aside and advance toward a work of art in the loneliness of our own truth. Each of us encounters the work alone, and how much we receive from it is wholly the effect of our will to accept this responsibility.

What was Jackson Pollock's purpose in painting Lavender Mist? Van Gogh's in painting The Irises? Haven't we accepted by now the limitations focus on artistic intention would impose on our appreciation of art? Yet, in Blanch v. Koons, 467 F.3d 244, 252-53 (2d Cir. 2007)(emphasis added), the Second Circuit, in holding that Jeff Koons' appropriation of a copyrighted photograph constituted fair use, based its conclusion that Koons' use of the photograph was "transformative" precisely on Koons' statements regarding what he intended:

Koons asserts -- and Blanch does not deny -- that his purposes in using Blanch's image are sharply different from Blanch's goals in creating it. Compare Koons Aff. at P4 ("I want the viewer to think about his/her personal experience with these objects, products, and images and at the same time gain new insight into how these affect our lives.") with Blanch Dep. at 112-113 ("I wanted to show some sort of erotic sense[;] . . . to get . . . more of a sexuality to the photographs."). The sharply different objectives that Koons had in using, and Blanch had in creating, "Silk Sandals" confirms the transformative nature of the use. See Bill Graham Archives, 448 F.3d at 609 (finding transformative use when defendant's purpose in using copyrighted concert poster was "plainly different from the [*253] original purpose for which they were created"); see also 17 U.S.C. § 107(1) (first fair-use factor is the "purpose and character of the use" (emphasis added)).

Koons is, by his own undisputed description, using Blanch's image as fodder for his commentary on the social and aesthetic consequences of mass media.Castle Rock Entm't, 150 F.3d at 142 (quoting Leval, supra, 103 Harv. L. Rev, at 1111). When, as here, the copyrighted work is used as "raw material," Castle Rock Entm't, 150 F.3d at 142 (internal quotation marks and citation omitted), in the furtherance of distinct creative or communicative objectives, the use is transformative. Id.; see also Bill Graham Archives, 448 F.3d at 609 (use of concert posters "as historical artifacts" in a biography was transformative); Leibovitz v. Paramount Pictures Corp., 137 F.3d 109, 113 (2d Cir. 1998) (parody of a photograph in a movie poster was transformative when "the ad [was] not merely different; it differ[ed] in a way that may reasonably be perceived as commenting" on the original). His stated objective is thus not to repackage Blanch's "Silk Sandals," but to employ it "'in the creation of new information, new aesthetics, new insights and understandings.'"

The test for whether "Niagara's" use of "Silk Sandals" is "transformative," then, is whether it "merely supersedes the objects of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message." Campbell, 510 U.S. at 579 (internal quotation marks and citation omitted, alteration incorporated); Davis, 246 F.3d at 174 (same). The test almost perfectly describes Koons's adaptation of "Silk Sandals": the use of a fashion photograph created for publication in a glossy American "lifestyles" magazine -- with changes of its colors, the background against which it is portrayed, the medium, the size of the objects pictured, the objects' details and, crucially, their entirely different purpose and meaning -- as part of a massive painting commissioned for exhibition in a German art-gallery space. We therefore conclude that the use in question was transformative.