Thursday, February 05, 2009
The Shepard Fairey controversy: Aesthetics and the Law
My pal cartoonist Mark Martin (check out his Crazy Boss) recently sent me a link to this article:
to be found here.
I'm actually not a big fan of Shepard Fairey but did like the iconic quality of this image and am intrigued by the impact its had. I do remember wondering about this--where the original photo came from. I do think it's fair use.
The photo from which Fairey's image was taken was a widely circulated news photo. Fairey wasn't keeping this fact a secret.
The Rosie image that I based my image on is in public domain--anything without a copyright notice up to 1973 is in the public domain, and according to the admittedly not always reliable Wikipedia, Rosie falls under that category. But I think I should be able to make this kind of image even if it were copyrighted. Even though it's not a parody, I think it should fall under the same rules of protection. It's not an altered image, but a new work based on an existing image--it was turned into something else that's original and unique. There's no objective measure for what this means. It's totally aesthetic and based on criteria that can't be quantified. Where do you draw the line? That's the problem. It's hard to attach a logical rational legal definition to an aesthetic concept.
Obscenity laws present similar issues. The whole, what's art, what's prurient thing. A question that's totally rediculous to begin with--if the prurient appeal of a work is anathema, what's art and what aint just can't be determined by rational means. There's just no objective measure. Making art is a non-rational (not to be confused with irrational) activity, often done for rational reasons, but producing it and interpreting it is intuitive. Love, faith and aesthetics--rationality just doesn't apply.
Now if you appropriate an image and change it in a subtle way or appropriate an image outright for commercial gain, in my opinion, that shouldn't be allowed. If you duplicate a distinctive design and use it in a commercial context I don't think that should be allowed. I don't have any definitive criteria for this--it just seems morally wrong to me.
But then, on the other hand, I love that stuff like this exists:
And I think the world would be a poorer place if it didn't, and if the Indian versions of Superman and Batman didn't exist the world would be a poorer place, likewise some of the stuff on youtube that's derived from other sources, and an even poorer place if Indian knock-offs of AIDS drugs didn't exist--all stuff that could easily be said to fall under the laws of intellectual property.
Hustler magazine is art I don't care for as well, but I believe in its right to exist. I think child pornography shouldn't exist because I object to it morally and have no interest in it aesthetically, but not because it doesn't have aesthetic value. Aesthetics isn't a moral issue. What I mean by "value" is important to define here as well, because I mean value in the sense of a value ascribed to something--in the case of mathematics, in a rational sense: positive 5 has a positive value-- in the case of art, in an aesthetic sense which is completely non-rational and impossible to define logically. These values are not qualitative in a moral sense, but qualitative in a descriptive sense. This is not to say that it is "good" art, but that it is an aesthetic object,( even if just barely) rather than a purely utilitarian one. But then some people would argue that a hammer is an aesthetic object. So is art always something made, or can something become art just by the act of recognizing an aesthetic quality in the thing?
But that's a whole different issue.
Posted by Jed Alexander at 8:34 AM