Doodle of the Day - Confidential Work Product

Have you ever heard a lawyer claim that information is confidential attorney work product? Many of them act like everything they do is like gold or top-secret keys to unlocking a case. Even their lame scraps of paper with scribbles and doodles, lol. Here's a doodle for you...

Thank you for reading about the paintings, sculptures, drawings, works in progress, reviews, Doodle of the Day, and other art by Los Angeles artist Lucas Aardvark Novak. To see older blog posts and other doodles, click HERE :)

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Solitary Figure, 28" x 30", oil on acrylic sheet, 2013.

So What The Hell Is "Fair Use" Anyways?...Patrick Cariou v. Richard Prince...The Saga Continues...

The decision is out: 25 of the 30 artworks by Richard Prince make fair use of Patrick Cariou's photographs. The remaining 5 works were remanded to the District Court to apply the proper legal standard and make a determination whether they also make fair use of Cariou's photos. Such is last month's ruling by the United States Court of Appeals for the Second Circuit.

To recap the debate: internationally renown contemporary artist, Richard Prince, appropriated Cariou's photographs of Rastafarian people (without Cariou's permission) in transforming the photographs into artworks of a different feeling. The District Court (lower court) found Prince (and Gagosian Gallery) liable for infringement of Cariou's copyright interests.  The following image, for example, shows a photograph on the left by Cariou; on the right, Prince's appropriation of it, a work which sold for about a million dollars:

 
To put it into perspective, imagine that you took a photo of your friend, the man on the left. Then, without your permission (and without any compensation of course), someone used that photo and transformed it into what is depicted on the right, changed the size, and sold it for a million dollars. Copyright infringement or fair use?

Of significance is that the above example is one of the five artworks in which the Circuit Court did not make a determination because I suppose it was too much of a close call. All of the artworks at issue can be seen here: http://www.ca2.uscourts.gov/11-1197apx.htm. And the Circuit Court's opinion can be found here: http://blogs.library.duke.edu/scholcomm/files/2013/04/138475739-Cariou-v-Prince-2nd-Circ.pdf

Here are a couple examples of Prince's pieces found to be fair use (the appropriated photographs of women are not Cariou's, and I'm not sure whose they are -- if they're yours maybe you should join this lawsuit):

Whose rights should prevail? I foresee that the Circuit Court's holding is not final, and the case will now (in due time) be heard by the United States Supreme Court.

The purpose of copyright law is "[t]o promote the Progress of Science and useful Arts . . . ." U.S. Const., Art. I, § 8, cl. 8. And as the Circuit Court noted, "[C]opyright is not an inevitable, divine, or natural right that confers on authors the absolute ownership of their creations. It is designed rather to stimulate activity and progress in the arts for the intellectual enrichment of the public...[The] fair use doctrine mediates between the property rights copyright law establishes in creative works, which must be protected up to a point, and the ability of authors, artists, and the rest of us to express them -- or ourselves by reference to the works of others, which must be protected up to a point." (A more incontrovertible example of fair use is me posting images of Prince's work on this blog.)

The concern I have with the Circuit Court's ruling, however, is that the judges themselves concluded what was fair use versus what could be copyright infringement. The Circuit Court heard the case on a review of a summary judgment motion. In the law, a judge may grant summary judgment when there are no disputes of material fact but only disputes regarding issues of law. If there are triable issues of fact (such as a dispute whether a traffic light was red or green), then it is up to a jury to decide.  

In this case, the judges are aware of this, but they state: "Although fair use is a mixed question of law and fact, this court has on numerous occasions resolved fair use determinations at the summary judgment stage where . . . there are no genuine issues of material fact. This case lends itself to that approach.” 

What the Court fails to explain is how "this case lends itself to that approach." While I don't necessarily disagree with the Court's conclusions, the way I see it, this entire case is a dispute of fact. This fair use inquiry rests entirely on aesthetic perceptions, artistic opinion and expertise, conceptual value of the works at issue, and artistic and scientific evaluations of how the copyrighted works were transformed, while relying on testimony of witnesses and experts -- all issues of fact for a jury to decide! Isn't that why there is such a thing as juries? 

One outstanding part of the Circuit Court's opinion, however, is its rejection of the District Court's order that the defendants (Prince, Lawrence Gagosian, and Gagosian Gallery) deliver Prince's artworks to Cariou for their destruction. Even Cariou agreed that destruction of Prince's work would be against the public interest. Good! The very nature of this dispute has made all of the artworks museum-quality stuff.

(Notably, it appears several museums, including the Art Institute of Chicago, The Metropolitan Museum of Art, MoMA, and LACMA, filed amicus briefs offering information as nonparties to the case because of their serious interest in the outcome.)

What remains unfortunate, especially for us artists interested in knowing how far our copyright extends, or how much we may appropriate from others, is that the line remains a giant haze: competent courts, such as the federal district court and circuit court in New York, can completely disagree.

Thank you for reading about the paintings, sculptures, drawings, works in progress, reviews, Doodle of the Day, and other art by Los Angeles artist Lucas Aardvark Novak. To see older blog posts and other doodles, click HERE :)

The Chain of History and Contemporary Competitors

We build upon or improve what has been completed in the past in trying to create something cutting edge and new. This painting is a continuation of my exploration of oil on acrylic sheeting. Similar to my hybrid paintings, it is a tension between painting as an illusion of something and the object of paint as a viscous medium. Aided by the sensitivity of the acrylic sheet, the tension builds through layers and texture:

Without consciously thinking about my influences during the process of painting, I see now that this piece calls upon some artists of the past. Waterfall No. 2, 24" x 18", oil on acrylic sheet, 2013.

In reviewing the chain of history to build something new, it also makes sense to review what others are doing today -- the contemporary "competitors", to say it in a democratic way. A contemporary artist who I find to be creating striking work is Romanian-born Adrian Ghenie. Ghenie is a relatively young artist (b.1977) who has exhibited at Pace Gallery in New York and Mihai Nicodim Gallery in Los Angeles. I appreciate not only the way he incorporates abstraction with figurative, but also his reference to historical and current events.

For example, the following is a portait by Ghenie which reminds me of a painting by artist, Francis Bacon, who in turn referenced a painting by Diego Velazquez. The chain of history exemplified...

Adrian Ghenie, 2009:

Francis Bacon, 1953:

Diego Velazquez, 1650:

Thank you for reading about the paintings, sculptures, drawings, works in progress, reviews, Doodle of the Day, and other art by Los Angeles artist Lucas Aardvark Novak. To see older blog posts and other doodles, click HERE :)

Doodle of the Day - At The Drug Store

Drug stores have certain products displayed for sale behind the cashier. But I recently saw a guy standing at the counter, staring at the shelf where two different types of products should never be displayed right next to each other. He wanted to make a healthy purchase, but he looked baffled, befuddled, bewildered, and indecisive. Poor guy; perhaps it's an evil conspiracy . . .

Thank you for reading about the paintings, sculptures, drawings, works in progress, reviews, Doodle of the Day, and other art by Los Angeles artist Lucas Aardvark Novak. To see older blog posts and other doodles, click HERE :)

Joshua Tree National Park - Happy Mother's Day - Thought Process Part 2

So here's what happened: I went camping in Joshua Tree National Park a couple weeks ago. On the first night, we went for a night hike, headlamps or flashlights, in the open desert with a faint glow from the half moon and billions of stars. The area had weedy clumps and spiky shrubbery scattered among rocky clusters and uncompromising joshua trees, and it's where we searched for jack rabbits, coyotes, foxes, roadrunners, snakes, scorpions, or whatever else might strike our fancy.   

A ways behind me, I could see little yellow and orange glimmers representing a few campfires remaining at our campsite. The campsite was huddled in a circle around a tower of boulders and rocks - the type notorious for the park. Not far beyond the campsite were jagged rocky "hills", silhouettes cutting into the lighter-shade atmosphere.

I suddenly saw a light in one of the jagged rocky hills - like a bright star of its own - its immediate ascent into the sky at a 45 degree angle, completely silent, with a consistent speed and straight path. As the light ascended, its brightness would fade at times, so that if its shape were - cough cough - a saucer, it would make sense that the light faded because the saucer tilted slightly in its ascension. Up and up, disappearing into the dark distance.

The next morning we wanted to see if we could find anything out in that rocky hill. We found a hiking trail on the other side of the campsite leading to some adobe ruins from maybe a hundred or more years ago. The trailhead had a sign with some information about the ruins. But most strangely, it was entitled We Have Contact. We made it to the ruins without much incident, but we didn't stop there. Here's a member of our group, Abdul Mazid, taking a photograph in the direction of the flying object from the night before:

Here are the others wandering around:

Here's the landscape:

We continued hiking beyond the adobe ruins, and as we neared a crest in the path, we heard noticeable but unidentifiable breathing sounds up ahead. We stopped moving. At first, I thought, perhaps a dying rabbit. Then I thought: a dying person??? We inched forward, and then Scotty announced, "Two turtles having sex!"

Indeed. Here they (tortoises) are:

For all we know, based on our vantage point from the night before, this was the exact spot where the flying object began its ascent. If not the exact spot, it was damn near.

Happy Mother's Day.

One creative thing leads to another. The following are Thought Process paintings Nos. 14 through 19 of the series, 8" x 10", oil on acrylic sheet...

Thank you for reading about the paintings, sculptures, drawings, works in progress, reviews, Doodle of the Day, and other art by Los Angeles artist Lucas Aardvark Novak. To see older blog posts and other doodles, click HERE :)

Thought Process Paintings

I often choose painting as my artistic medium because, like society, there are limitations which must be accepted at first. But within those limitations, regardless of the subject matter, there are infinite possibilities. I believe painting remains one of the most complex forms of art for an individual artist. As society continues to evolve, so does painting. Painting is not simply about representing forms or images. It is a form of communication on a level that cannot be described in words. 

Here are some 8" x 10" abstract paintings on acrylic sheeting from the Thought Process series...

Thank you for reading about the paintings, sculptures, drawings, works in progress, reviews, Doodle of the Day, and other art by Los Angeles artist Lucas Aardvark Novak. To see older blog posts and other doodles, click HERE :)