Archive for February, 2009

So long, Chelsea?

February 17, 2009

 The obituaries have begun rolling in, a bit prematurely.  The art business, including New York’s Chelsea district art galleries, wouldn’t be the first industry to take a critical stumble after engaging in widespread speculation.  Considering the economic conditions, there’s bound to be a substantial reduction in the number of galleries, but the process it is likely to be more of a gradual shedding or retreat than a forest fire. 

 Despite the economy, the problems in the art market also have a significant basis in the nature of industry’s past decade practices.  The growing price tags and auction receipts had been making the evening news for years, but that is mainly involving the somewhat established artists and artworks.  Notable to more than a few interested observers there has, arguably, been an change in the quality of artwork exhibited in a number of contemporary galleries and other exhibition spaces.  This is attributable to several factors, including the emphasis on trend and fashion over content, by both buyers and sellers, coupled with an expectation of an inevitable increase in valuation.

 The fashion world seems to have become particularly melded into the art world to a much greater degree.  However, what is good for fashion is not necessarily good for art.  The associated media attention does not necessary advance the progress of art as cultural communication, but rather art as an event.  Trend (a.k.a. celebrity) and lasting cultural value are often opposing characteristics.  The trend focus in the art business has come to encompass a package containing more than just the artwork, or perhaps the artwork is simply the least of it.  Within the last 7 or 8 years, particularly, there has been a inclination towards promoting the artist as personality, as a basis for valuating the artwork.  Naturally people want to see the young, fashionable, trendy and attractive–and artists that fulfill those qualifications have had some success on this angle.  But, one may question whether this position creates a sustainable art market.

 The first result of this perspective is that artwork is not evaluated based upon its actual worth but on a transient element that exists outside the boundaries of the actual work.  Sometimes this can be a historically significant event that ultimately adds a lasting cultural dimension to the work.  However, when this transient quality is the based upon the fleeting presence of a personality, this characteristic rarely remains attached to the artwork.  Once a personality fades from view, or reaches the media expiration date, a certain depreciation of the artwork may occur as well.  Or, perhaps, it simply fails to increase in value.  Artwork sold on the basis of the future value of an artist’s personality and celebrity potential is speculative and subject to the same risk as other gambling—so long as there is no other more lasting quality to the artwork.  Once the personality/trend bubble has passed, interest in the artwork and artist fades, along with its revenue potential.

 Secondly, this trend based focus tends to circumvent the natural development of an artist.  In recent years there has been an infatuation with artists straight out of–or still in–graduate school.  However, a very very few artists come out of graduate school with a fully developed conceptual perspective and working method.  Graduate school–which now seems to be a requirement rather than the exception–is a place where ideas are coddled and where, ideally, a fermentation process begins.  An individual artist’s ability to continuing developing, artistically and intellectually, depends upon completing a cycle.  Without this, subsequent work product can sometimes just result in a rehashing of earlier works without the development of new ideas.  In essence, a sustained  focus on graduate students as a product pool short circuits both the individual and collective development of visual art.

 It will be interesting to see where the current economic landslide leads the galleries, whether they will continue in pursuit of artwork in the same vein, or begin to market more works with a perceived higher likelihood of value retention.   Whichever direction it all goes will likely determine the future of the art market and the career potentials for artists.  Regardless, there seem to be changes soon to come–some in the form of bankruptcies, but also in the form of art business’ that quietly close the Chelsea shop, slip off to Brooklyn, and show artwork “by appointment only.”  Regardless, it seems inevitable that the economic downturn will irretrievably alter the art market, and in the best outcome, allow for more diverse and hardy varieties of grass to grow in the resulting space.


Part I of many; to be continued.



International blog watch: Tokyo Source

February 17, 2009

Tokyo Source is a Japanese web magazine that features interviews, reports on event happenings, creative projects and an evolving cultural perspective.  It can be  described as more than an emerging online presence, but rather, it presents the focus of a social movement; a network to change the world–with a refreshing and sustainable perspective.  Tokyo Source introduces evocative artists/creators from artistic and social fields in the form of its trademark extended interviews, exhibitions, projects, and talk media.   The blog  feature is a distinctive resource for information on the art and creative scene in Japan and for a contrasting perspective on topical social/cultural issues.  It is well worth a visit by anyone with an interest in the Japanese art scene and local contemporary culture.  

The Tokyo Source group published a first book of interviews, これからを面白くしそうな31人に行った (31 were to be interesting to see the future) by Pie Books last summer and is available on Amazon JP

The Tokyo Source website and blog are written in Japanese, with a rough English translation available via the Google search/translator (just cut and paste page url into the Google search box).


Obama Icon Takes on the Copyright Act

February 10, 2009

The story about the Obama campaign icon artist Shepard Fairey and accusations of copyright infringement by AP has been bouncing around news sites and blogs in the last few days. In an interesting preemptive move, Fairey the creator of the ubiquitous red and blue Obama “Hope” image, filed suit in Manhattan against AP, the apparent owner of the original photograph that Fairey allegedly copied. As the Times reported, Fairey’s suit seeks a declaratory judgment from a Federal court, specifying that his work is not an infringement of AP’s photograph.

Donald R. Winslow of the National Press Photographers writes that Fairey has admitted to finding the AP photo on the web and using it as the basis for his Obama poster. On the surface it seems to be a straight forward case of infringement. However, Fairey’s attorney, Anthony T. Falzone** claims that the artist’s work simply references and transforms the original AP photo. In essence, Fairey claims a fair-use of the photograph.

This situation and others like it represent the collision area of the traditions of art, the structure of the law, and the rights of others. 

Artwork that draws upon the work of others without authorization is sometimes referred to as appropriation art. It is essentially, a horizontal version of the traditional progress of art, where artists draw upon the artwork of the past and build upon it. The main difference between contemporary appropriation art and the traditional process in the history of art is time and copyright laws. Regardless, of one’s position on this issue, it is important to look at all sides, all 3 dimensions of the problem.


Mannie Garcia and Shepard Fairey's Obama images



The Copyright Act specifies that making derivative works is one of the exclusive rights of the copyright holder. “…the owner of a copyright…has the exclusive rights to do and authorize…to prepare derivative works based upon the copyright work.” (17 U.S.C. Section 106, excerpt). As a compliment, arising out of the First Amendment’s free speech provision is the concept of fair-use which serves the purpose of protecting such communication in the context of copyright. The question suggested by Fairey’s suit is whether the Obama poster image is a derivative work, and if it is, whether it is a fair-use of the original photograph. Fairey appears to argue that his Obama image transforms the original photo, and thereby mitigates in favor of a fair-use, rather than just supplanting the copyright owner’s rights.

Fair-use is one defense to copyright infringement. This strategy is expected here if Fairey’s first-round declaratory judgment fails, and assuming that AP files a counter suit of copyright infringement. In a fair-use defense, the court will weigh various factors, such as purpose and character of the use, the amount of the original photograph used, effect on commercial market of the original, and potentially other factors as well. These are not yes or no questions, rather, they are an exercise in balancing. If the factors lean in Fairey’s favor, then he succeeds in the fair-use defense, if not, it then gets more complicated for him. (For more info, see my article on infringement and fair-use on

In a further twist, the original photo was apparently taken by Mannie Garcia who claims that he still owns the copyright.*  Typically, in work for hire situations the copyright is owned by the employer. Photographers usually work under contract in such a situation and the ownership of the copyrights should be specified in the document. AP said, “Mannie Garcia was clearly employed by AP when he took the photograph, and the photograph is clearly the property of The Associated Press.” And, Garcia said, “…. I’m not going to fight with them about it.”*  From Mannie Garcia’s statement, it appears that he is not planning to challenge AP’s apparent ownership of the copyright. According to the National Press Photographer’s interview, Garcia is pleased with the Obama poster and (assuming he does in fact own the copyright) has said that he has no intention of seeking payment from Fairey for use of his original image.

A key point in this evolving situation is whether the “Hope” image and its progeny, as socially significant images, will effect the balancing factors and the outcome of a potential Fairey fair-use defense. Arguably, Garcia’s photo was one among many similar such images of Barack Obama on the campaign trail. Fairey’s iconic poster profoundly represents–perhaps helped to inspire–a mass social and political action.

Does social significance translate into a transformative use?  

In this sense, Fairey’s poster has potential to effect more than politics and social action; it has the potential to effect, or further define the copyright law and the legal status of appropriation art.


*AP Restates Ownership; Claims Copyright Infringement Of Obama Poster Image

**Artist Sues The A.P. Over Obama Image


An UPDATE on this story is here.

Re: The Trade in Cultural History

February 8, 2009

Reuters reports that a book recovered from a raid on alleged antiquities smugglers in Cyprus may be a 1,000 to 2,000 year old bible. The object is described as a vellum manuscript, loosely bound together. Pages include a drawing of a palm tree and lines of gold text in Syriac script. Experts are divided about whether the object is authentic or not, but the story serves to highlight the continuing discovery of unknown cultural objects and the existence of the illegal antiquities trade.

Last week the Times reported in a brief note that the trial of Marion True, a former curator for the Getty Museum in Los Angles, and Robert Hecht, an American art dealer, resumed in Italy.  Ms. True and Mr. Hecht are accused of conspiring to export looted Italian antiquities. If they are in fact guilty, Marion True and Robert Hecht represent one point in the illegal trade network, whereas the individuals found with the Cypriot book represent the mid-point in the journey of an illegally excavated and exported cultural object. At the root of the process are those who accidentally find objects or purposefully search out and illegally excavate objects, destroying archeological sites in the process. In countries that have cultural objects of high desirability in the market, the monetary rewards for making an illegal sale drives the business along with an individual disregard for the importance of such objects to the culture itself.

Similar to Italy, Cyprus likewise vests ownership of antiquities in the government. The Antiquities Law of Cyprus states that all such objects discovered after the effective date of the law are the property of the government of Cyprus and all accidental findings (by those unlicensed to perform excavations) must be reported to the appropriate government agent.

Regardless of someone’s position on the disputed ownership of certain famous antiquities, it can be recognized that the illicit trade in cultural objects inflames emotions and hampers the present legal framework for resolving disputes. The illegal status of the business and the extreme monetary value of the objects encourages a covetous perspective that sustains the trade, along with generally promoting a materialistic approach to the objects themselves. As stated in the Reuters report, the Cypriot book, if authentic, is “priceless” and one can only guess at the private selling price of such an object. In this case it appears that the transaction was prevented, but an unknown number of such operations likely succeed every year, in all corners of the world–including the United States–taking an untold number of culturally significant objects away from both the public and the possibility of scientific and cultural study.

Image of the Syriac manuscript

Antiquities Laws of Cyrus (Republic of Cypus, Department of Antiquities), an English language version is available.

Retro-Politics: Conservatives Go After the NEA (Again)

February 4, 2009

Right on time, Representative Don Manzullo appeared on the Rachel Maddow show last week, citing funding for the NEA as one reason for his opposition to the economic Stimulus Plan.  As it has been widely reported, he and all Republican house members voted against the plan despite concessions. 

In expressing his opposition, Representative Manzullo resurrected the art-bashing politics of the late 1980s and early 1990s.  During that time, Jesse Helms and conservative groups sought to reduce or eliminate funding for the NEA (National Endowment for the Arts) based upon the government agency’s funding of artists like Karen Findley and Andres Serrano.  Helms and his collaborators targeted certain NEA funded artists as purveyors of the offensive, obscene and immoral.  They publicly attacked the financial support of such artists with government funds.

Government funding of the NEA has fluctuated over the last two decades, with a high of around $180 million to a low of about $99 million.  The problem with the NEA isn’t funding, however.  Rather, as self-defense against conservative attacks, the NEA preemptively ceased funding individual artists.  Despite, perhaps, saving the agency from a complete death at the time, it was severely hobbled by that decision.

During the 1980s and ‘90s artists and their supporters fought back against the conservative condemnation.  The attack on the NEA was, rightfully, described as an attempt at censorship.  The First Amendment ensures that the government will not enact laws that limit the freedom of speech, and the contemporaneous argument was that the reduction or elimination of funding was tantamount to government limitation of speech.  Conservatives and others that supported the attack claimed that the reduction of funding was a withholding; not an affirmative limitation of speech.  However, since the NEA self-limited itself, the Constitutional question was avoided–that of Congressional allocation of funding being equivalent to a law that limits speech.

However, the specific goal sought, at least in the public sphere, was the silencing of artists.  Anti-NEA conservatives claimed that this denial of grant opportunities was not censorship either because the artists could still speak–they just wouldn’t get paid for it.  Superficially this may be true, but most artists struggle for funding, so in fact the lack of public money very likely did prevent some artworks from being created.

 A side issue is that of obscenity.  Singling out a few artists from the many that received NEA grants, the NEA opposition claimed that obscene and offensive artwork was being funded by the agency.  In other forums, e.g., the courts, the definition of obscenity has seen progress over the years, changing from an I-know-it-when-I-see-it perspective, to one that accounts for potential, even if tiny, social, cultural or scientific value.  The NEA artists that were attacked never received the benefit of court review based upon the legal definition of obscenity, but rather were condemned based upon sensationalistic descriptions and misrepresentations about the purpose of their work.

In the context of art theory and criticism, artwork such as this should be evaluated on the success of the speech that it is producing.  A proper question might be whether Findley’s work evokes a feminist message or whether Serrano’s Piss Christ is a well-enunciated statement of religion and physicality, or just a gimmick.  Approaching these works from the perspective of “obscenity” is simply erroneous, simplistic, and serves only to sensationalize and politicize speech.

The NEA, as it exists today, is less than a shadow of its former self.  It exists only to fund groups and community projects, which are certainly worthy, but for purely political–speech based–reasons, it does not fund individual artists at all.  By not funding individuals, the NEA removes itself from making potentially politically reverberating decisions.  The agency censors itself.  In the past, artists valued the NEA, not just because it was a source of funds, but because it was non-discriminatory in allocating its grants, thereby truly promoting the progress of the arts (and in consequence, socio-cultural discourse).

The NEA is still hedging its position today.  On the NEA website, the Visual Arts grant information page states, “The Arts Endowment is committed to advancing and preserving the work of contemporary visual artists that reflects serious and exceptional aesthetic investigation.”   (Emphasis added).  The main grant page states that, “In most areas, funding is limited to organizations.”  The Art Projects area, which in the past would have encompassed individual artists, lists several main categories for which grant applications may be entered, including: “Access  to Artistic Excellence…organization; Challenge America:  Reaching Every Community Fast-Track Review Grants; and Learning in the Arts…organization.”  (Emphasis added).

Despite the position taken by the anti-NEA conservatives, there are probably many reasons why artists were targeted, then and now.  I believe that in using anecdotal information only, it is reasonable to state that very few, if any, artists have the same political leanings as Jesse Helms, Representative Manzullo and their conservative colleagues.  Attacks on the NEA are not only based upon superficial moral, and potentially religious differences, but they are attacks based upon political objectives.  Few NEA artists are likely to be Rep. Manzullo’s constituents, and based upon history, he may believe that he can score points with his actual constituents through this method.  Therefore, the attacks on NEA, in the 1990s or now, can also be seen as an attempt to create cultural divisiveness for political gain.

On his website, Representative Manzullo, who represents Northern Illinois, has posted his grievances with the stimulus package, citing that NEA funding is “non-job creating.”

“The non-job creating spending in this bill includes:

[item] a)  $50 million for the National Endowment for the Arts.”

( January 29,2009)

As supporters have pointed out, artists, in fact, do work and funding to the NEA does create jobs.  This seems particularly true given the present configuration of the NEA, which would tend to allocate funding to community groups and organizations.  Personnel will be needed to organize events, teach classes, usher audience member to their seats, build backdrops, etc., etc.  In turn, particularly in regards to performance-based art and visual art exhibitions, cafes and restaurants also benefit by the presence of  local art events and the patronage of attendees.  If individual artists were able to receive grants they would, as probable conditions of the grant, spend the full allocation on producing artwork by purchasing supplies and services–which of course, puts money directly into the local economy–and produces jobs.  In turn, individual artists also tend to work with community organizations and galleries, which also creates audiences that are likely to buy an extra cup of coffee or have a meal nearby.  NEA funding creates jobs.

It would be more than a shame if we let retro-politics determine how we perceive the funding of the arts.  Rather than limiting NEA funding, this is clearly an area that benefits local economies.  It also, just as importantly, advances the socio-cultural discussion.  The stimulus bill’s provision for additional funding for the NEA should be supported, but artists and art patrons should also lobby the NEA to relax its self-imposed restrictions and once again promote free expression.



National Endowment for the Arts 

Update 2/18/2009:

The Stimulus Bill, signed by President Obama yesterday, ultimately retained $50 million in funding for the  NEA.

N.E.A. Press Release

History and Text of the Stimulus Bill is available on the Library of Congress site here.

Additional Resources:

To Encourage Great Art, Help Great Artists by Raymond J. Learsy, 2002, NY Times