Archive for the ‘politics’ Category

What a Nightmare: SOPA H.R. 3261

January 18, 2012

As the subject of today’s protests across the internet, SOPA – the Stop Online Piracy Act – is a appalling piece of proposed legislation.  The full text of the proposed Act is here.

SOPA has a savings clause designed, in theory, to prevent its provisions from violating Constitutional rights.

FIRST AMENDMENT- Nothing in this Act shall be construed to impose a prior restraint on free speech or the press protected under the 1st Amendment to the Constitution.  (SOPA, Section 2 (a) (1) emphasis added).

Yet, provisions of the bill seem to present a clear potential for the prior restraint of speech–in violation of the First Amendment.  For example, this  includes SOPA’s provisions for the use of Search Engines to essentially censor content within 5 days of a court’s order–a restraining order that can be issued prior to a full review, trial, or hearing.

INTERNET SEARCH ENGINES- A provider of an Internet search engine shall take technically feasible and reasonable measures, as expeditiously as possible, but in any case within 5 days after being served with a copy of the order, or within such time as the court may order, designed to prevent the foreign infringing site that is subject to the order, or a portion of such site specified in the order, from being served as a direct hypertext link. (SOPA, Sec. 2 (c)(2)(B) emphasis added).

A search engine company served with the restraining order must remove links to the website within 5 days.  In other words, the search engine is required to exclude the allegedly infringing site from being found in a Google search, e.g.,–essentially hiding the content from the public.

SOPA would enable a  court to issue an restraint order before any trial or hearing has occurred–in other words, before there has been a determination of whether or not the defense of fair-use may apply.  Therefore, if it turns out later that the material was not an unlawful infringement, if it was a parody for example, then the court order would have effectively restrained protected speech without due process.

As a reminder…the First Amendment ensures that: “Congress shall make no law…prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press…” (Emphasis added).

It may be that the Act is almost self-canceling on the point of Congressional interference with speech rights.  Despite the savings clause, the bill is not narrowly drawn and there does not appear to be sufficient limitations to prevent a potential restraint of protected speech.  If it passes, SOPA seems sure to promote an avalanche of expensive and time consuming litigation.

Just a few more provisions to ponder (with emphasis and some comments added):

(a) Definition– For purposes of this section, a foreign Internet site or portion thereof is a `foreign infringing site’ if–

(1) the Internet site or portion thereof is a U.S.-directed site and is used by users in the United States;

(2) the owner or operator of such Internet site is committing or facilitating the commission of criminal violations punishable under section 2318, 2319, 2319A, 2319B, or 2320, [criminal copyright infringement] or chapter 90 [protection of trade secrets/intellectual property rights], of title 18, United States Code; and

(3)  the Internet site would, by reason of acts described in paragraph (1), be subject to seizure in the United States in an action brought by the Attorney General if such site were a domestic Internet site.

(SOPA, Sec. 102, emphasis and bracketed comments added).

 The Attorney General can commence an action under SOPA simply “on notice” to the following:

 (A) to the registrant of the domain name of the Internet site…

 (B) to the owner or operator of the Internet site…

(C) in any other such form as the court may provide, including as may be required by rule 4(f) of the Federal Rules of Civil Procedure…

(Sec. 102 (b)(3)).

Updated/revised 1/18/2012

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Artist Requests Removal of Artwork from NPG/Smithsonian Exhibition; Foundations Withdraw Support

December 19, 2010

Since the National Portrait Gallery caved to right-wing political pressure and removed the David Wojnarowicz’ video work, “A Fire in My Belly,” from exhibition, other  artists and donor groups have withdrawn their support of NPG.  The removal of the artwork from NPG’s “Hide and Seek” exhibition has been the subject of widespread criticism in the arts community.

One expression of dissent has come from artist AA Bronson, who has requested that his after death portrait of Felix Partz be removed from the exhibition as well.  The photographic portrait was taken shorty after Mr. Partz died as a result of AIDS in 1994.  In light of the removal of the Wojnarowicz’ work, Bronson said, “I feel I have no choice but to withdraw the work.”  NPG has apparently declined to return the portrait, which is owned by the National Gallery of Canada.  The National Gallery of Canada has not withdrawn the portrait and has stated that it will abide by the loan agreement with NPG.

Art organizations have stated their intent to remove both artwork and funding from the NPG/Smithsonian.  The Andy Warhol Foundation has  threatened to cease funding Smithsonian exhibitions if the Wojnarowicz video is not redisplayed.  The Foundation apparently donated $100,000 for the “Hide and Seek” exhibition itself.  The Robert Mapplethorpe Foundation has also stated that it will no longer provide funding to the Smithsonian if the Wojnarowicz video is not restored to the exhibition.

In the wake of the NPG/Smithsonian removal, a number of institutions, including the Tate Modern, have announced plans to exhibit “A Fire in My Belly.”

References/Related:

Protesting Video’s Removal, Artist Asks Portrait Gallery to Take His Work Out of Show (Washington Post)

Curators Criticize Controversial Art’s Removal

Museums Jump In to Show Video Removed by Smithsonian

Tate Modern, David Wojarnowicz event, January 22, 2011

[Warhol] Foundation Says It’s Ending  Smithsonian Support

The New War on the Arts: Wojnarowicz at the National Portrait Gallery

December 5, 2010

David WojnarowiczOn the heels of the recently mid-term elections, the reinvigorated extreme right wing has re-ignited the war on culture–this time with the complicity of the U.S. National Portrait Gallery.  The Gallery, a component of the Smithsonian institution, is removing a video work by renown artist David Wojnarowicz after criticism from Republican Congressional Representatives and the Catholic League.

The National Portrait Gallery exhibition, “Hide and Seek,” opened on October 30th and runs through February 13, 2011.  The exhibition features several artists and is described as, “… the first major museum exhibition showing how questions of gender and sexual identity have dramatically shaped the creation of modern American portraiture.”  Along with Wojnarowicz, the exhibition includes works by Thomas Eakins, Georgia O’Keefe, Felix Gonzalez-Torres, Andy Warhol, Jasper Johns, Keith Haring, and Robert Rauschenberg, among others.

David Wojnarowicz is well known for his visual art concerning AIDS and sexuality.  In 1990 he successfully sued the American Family Association for improper use of his images under the New York Artist’s Authorship Rights Act, winning nominal damages.  The artist died of AIDS in 1992.

Martin E. Sullivan, Director of the National Portrait Gallery, apparently tried to defend the Wojnarowicz video, but the artwork was still removed.  He described the video, “A Fire in My Belly,” as concerning the effects of AIDS in Latin American culture.

According to the New York Times, Representatives Eric Kantor (Virginia) and Jack Kingston (Georgia) were critical of the display of Wojnarowicz’ artwork.  In an eccho of the 1990’s GOP attacks on the arts, Rep. Kingston referred to Wojnarowicz’ video  as “in-your-face perversion paid for by tax dollars.”  Rep. Cantor claimed that it was an “obvious attempt” to offend Christians, also citing the use of tax dollars.

Bill Donohue of the Catholic League, an organization that is not officially affiliated with the Church, in the Times interview, disputed the significance of the artist’s perspective, and apparently the human catastrophe of AIDS altogether saying, “I’m not going to buy the argument that this is some statement about some poor guy dying of AIDS.”

The National Portrait Gallery belongs to all the people, and AIDS has had a profound effect on this country and all Americans.  That this artwork was removed in this way, due to political pressure particularly, is shameful, despite the contrition of Mr. Sullivan.  Artists and anyone else concerned with First Amendment rights, the sanctioning of homophobia in our public institutions, or the reality of AIDS–historically or presently–should be appalled by this action and the NPG’s complicity Smithsonian leadership’s willing participation in it.

Update 12/12/2010: Frank Rich, in the NY Times, clarified that Donohue’s Catholic League has no official or financial connection to the Catholic Church.  Rich also writes about the creation of “Fire in My Belly,” artists responses to the AIDS crisis, the blatant homophobic decision to censor the NPG exhibition, the ruse of a religious offence, and the underlying right-wing politics underlying it all.

Recommended reading:  Frank Rich, Gay Bashing at the Smithsonian

Related:

Wojnarowicz v. American Family Association and case summary on ArtUntitled.com

Summary of New York Artists Authorship Act on ArtUntitled.com.

Smithsonian/National Portrait Gallery press release announcing the “Hide and Seek” exhibition.

Above is a well-known image of David Wojnarowicz, frequently associated with the “Silence = Death” slogan used to promote activism in the fight against AIDS.

October Art Sale?

September 22, 2010

The New York State Board of Regents, in an unexpected action, will allow regulations concerning museum deaccessioning practices to expire on October 8th.

Barring some other action, this will allow New York museums and other cultural institutions in the state to sell artwork from their collections to fund general operating expenses and other purposes. Such sales are usually frowned upon by art ethics organizations which typically take a position that art in institutional collections should only be sold to generate funding for the purchase of other artwork.

Richard Brodsky said to the NY Times that the action, “…removes a substantial obstacle to the monetization of art held in the public trust” and [the Board’s failure to halt the lapse] could cause “the transfer of art from public to private hands.”

Update/clarification:  It seems that the fears of museums selling off their collections to pay for general operating expenses has been overblown.  The regulations set to expire are/were temporary measures, as described here.  Existing general regulations continue to prohibit the use of art sale funds for operating costs.  Artifactum will post links to the regulation in the near future-check back.

Fairey Admits Falsehood re Source of “Hope” Image; Lawyers Quit

October 17, 2009

The Associate Press reported this morning that lawyers for artist Shepard Fairey, infamous creator of the Obama Hope poster, are withdrawing from representation over admissions that the artist misled them.

Fairey reportedly admitted that he intentionally misrepresented the actual source photograph for the iconic poster at the heart of AP’s copyright infringement suit against him.  The admission affirmed AP’s position that the source was a close up shot of then candidate Obama, rather than a wider shot that included actor George Clooney as Fairey had stated in his complaint against AP.  On Friday papers were filed in federal court, amending the complaint with Fairey’s new position.  At least some of the lawyers involved reportedly intend to seek court permission to withdraw in the near future.  According to the New York Rules of Professional Conduct, lawyers may with draw from representation under certain circumstances that appear to be similar to those described.  (Rule 1.16)

Fairey had presented some interesting arguments, including that of the limited access to images of famous persons as a reason to necessitate a fair use of such press photos. However, the future of Fairey’s case is now unclear.  While this information doesn’t necessarily kill his argument, the new information seems to implicate the third fair-use statutory factor, relating to the amount and substantiality of the image taken.  17 U.S.C. § 107 (3).  Presenting misleading information in a court document is serious–and certainly Fairey’s credibility has been damaged with the admission.

Related info:

Fairey’s complaint against AP

About fair-use, on ArtUntitled.com

§ 107 statutory fair-use factors, on ArtUntitled.com

UPDATE 10/20/09:  AP files a motion to amend its counterclaim against Fairey.