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ASA Session at the College Art Association Annual Meeting

Friday, August 17, 2018   (0 Comments)
Posted by: Julie Van Camp
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The American Society for Aesthetics is sponsoring a session on "Thou Shalt Not Copy - Or Should You? Copyright and Its Enemies in Contemporary Visual Arts" at the next meeting of the College Art Association (New York, February 13-16, 2019).

The ASA session is scheduled for Wednesday, February 13 from 2-3:30 pm. The complete schedule for the CAA meeting will be announced on October 8 on the CAA web site: The CAA normally requires that attendees be members of CAA and register for the meeting. But it does have limited registrations available for one day or one session. Details will be available this fall on the CAA web site.

As an Affiliate member of the CAA, ASA is entitled to one session at each annual meeting without competing through the regular program process. Persons interested in organizing a session for the 2020 meeting should contact at your earliest opportunity. Final program submissions will be due in April 2019.

The program sponsored by ASA was organized by Andrea Baldini.

Session Abstract: In mid-March 2018, the art world was taken by storm when H&M announced a legal dispute with artist Jason “REVOK” Williams. H&M’s legal action was a response to a cease-and-desist letter that REVOK’s lawyers had sent to the legal representative of the Swedish clothing company. REVOK filed a lawsuit against H&M for copyright infringement. The brand, in effect, appropriated in recent advertising campaign one of the most iconic of REVOK’s graffiti, illegally painted on a wall of the William Sheridan Playground handball court in Williamsburg, Brooklyn. H&M said that, as in their view the protection of intellectual property does not extend to the illegal, “Mr. Williams has no copyright rights to assert.” This claim in turn generated a vigorous reaction in public opinion.

 REVOK’s case is just the most recent high-profile case raising questions about the protection of an artist’s rights in today’s globalized world. This panel explores recent philosophical complications in intellectual property regulations with a focus on contemporary practices of visual art. Spontaneous practices of art in the public domain such as street art and graffiti as well as recent trends in conceptual and installation art call for a new re-assessment of core notions at the core of copyright laws. The intricacies of the subject under consideration exceed disciplinary boundaries; this panel wants to stimulate an interdisciplinary dialogue and approach, which can bring together art historians, philosophers of art, and legal scholars interested in the intersection between art, aesthetics, and law.

Organizer: Andrea Baldini (on behalf of the ASA)

Chair: Tiziana Andina

 Trespassing the Law: From Vandalism to Art

Andrea Baldini (Nanjing University) and Gianmaria Ajani (University of Turin)

The H&M legal feud with graffiti artist REVOK comes after prominent street-art-related case involving 5Pointz. Originally a warehouse in Queens, since the 1970s this space has been a favorite of writers and street artists. Hundreds of them left their marks on 5Pointz’s wall. This in turn transformed the location into an “open air museum” of graffiti and street art. When the landlord finally painted over all the murals without permission from the artists, a federal judge ordered him to pay the 21 wronged artists $6.75 million in damages.

 Many have welcomed this new trend in legal disputes about street art and graffiti as a sign of an emerging recognition of the value of these practices. Until now largely dismissed as a juvenile form of vandalism, now they seem to have entered the domain of art. In line with this evolving sensibility, Enrico Bonadio (2017) has argued that, de jure, current norms of copyright are applicable to controversies of street art and graffiti, even when we are dealing with illegal works. In this paper, we review the legal aspects of the application of intellectual property law to street art and graffiti. Then we examine the philosophical foundation of the desire to extend copyright to the domain of street art and graffiti. We then pay particular attention to the implications of this legal trend by discussing the risks of this legal turn, which may very well reshape the core values that, so far, have animated these practices.

Performative Law. The Function of Legal Rules in the Creation of the Artistic Object

Angela Condello (University of Turin) and Maurizio Ferraris (University of Turin)

 REVOK v. H&M shows how legal language plays a crucial function in the definition of the artistic object. The case is particularly interesting because it concerns the infringement of a legal rule and the possibility of considering the object of the infringement as an artistic object. The case seems to be a conundrum of questions typical of criminal law, copyright law, philosophy of art and legal philosophy and deals with the performative function of law (and of similar and precedent cases) in the construction of the artwork. The paper consists of an analysis of these questions and of a philosophical inquiry into the function of the masterpiece in the definition of a new artistic genre – even if illegal.

Risk and Mission

Darren Hudson Hick (Furman University)

 In their 2014 Issues Report to the College Art Association (forming the foundation of the CAA’s 2015 Code of Best Practices for Fair Use in the Visual Arts), Patricia Aufderheide and Peter Jaszi propose: (1) that visual art professionals overestimate the risk of employing fair use in their work; (2) that this reflects a widespread and unfortunate “permissions culture”; (3) that these can “sabotage mission,” putting unwarranted limits on artistic freedom; and (4) that the flexibility of the fair use doctrine is its strength. In this paper, I refute each of these claims, arguing (1′) that artists and others looking to depend on a fair use defense should be very wary indeed; (2′) that the notion of a “permissions culture” is at best hyperbole; (3′) that there is nothing unwarranted about limits to artistic freedom; and (4′) that the flexibility of the fair use doctrine makes it impossible to know whether some use is fair (and thus legal) without all the fun and expense of a trial—something that can hardly be called a strength of the doctrine. Happily, I note, the actual Code produced by the CAA seems to ignore Aufderheide and Jaszi’s findings.

Aesthetic Judgment in Copyright Law

Brian Soucek (Uiversity of California, Davis School of Law)

 Aesthetic judgment pervades copyright law: from decisions about what counts as substantial similarly and its distinction between the aesthetic and the useful, to its moral rights protections for visual art “of recognized stature” and the four prongs of the fair use test. Yet almost no one thinks the government should decide what counts as art or what has aesthetic value. As Justice Holmes wrote in 1903, “It would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations.”

 After showing how aesthetic judgment in copyright is far more pervasive and unavoidable than most have recognized, this paper examines the reasons generally offered for why aesthetic judgment in law is problematic. Dismissing most of them, this paper instead roots worries about aesthetic judgment in the First Amendment’s prohibition of government-imposed aesthetic orthodoxy. This means that copyright law cannot prevent people from expressing their own aesthetic judgements, but it (largely) doesn’t mean that the government cannot subsidize its own favored aesthetics. The questions thus become: When does copyright shut down expression instead of incentivizing it?; and, insofar as it’s doing the latter, What substantive aesthetic judgments do we want copyright law to promote—and what role should artists and philosophers of art play in deciding this?

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