Posts Tagged ‘copyright’

The Evolution of Art

August 25, 2012

Although it is fundamental that new art builds upon that of the past, it is not often that we have a clear and obvious example of this with near-immediate worldwide effect. Fortuitously, a new artwork, la Nueva version de Ecce Homo de Borja (AKA Furry Jesus) demonstrates that process quite literally.  The new work was physically constructed upon the old.

Both the new and old Ecce Homo are located in the Santuario de la Misericordia in Borja, Spain.  Although the city of Borja has apparently initiated plans to attempt a “restoration” of the foundational version of Ecce Homo by Elias Garcia Martinez, an online petition (several actually) have arisen in an effort to stop the hasty removal of the nueva Ecce Homo by Cecilia Gimenez.  One petition author suggests that the new work represents a subtle criticism of the church’s theology, creationism particularly.    The work can also be interpreted as a comment upon modern copyright law.  As a conceptual piece, (nueva) Ecce Homo is not only a physical work; the act of creating the work itself is fundamental aspect of its meaning.

Image

In Artifactum’s view, we should not rush to erase la nueva [version de] Ecce Homo.  The place of this new work in the history of art and its value to world culture should be preserved.  Please consider signing the petition:

http://www.change.org/petitions/ayuntamiento-de-borja-zaragoza-mantenimiento-de-la-nueva-versi%C3%B3n-del-ecce-homo-de-borja

Additional coverage:

Huffington Post

New York Times

The Colbert Report

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What is Fair Use?

March 27, 2009

Fair use is a defense to copyright (or trademark) infringement.  A person (a defendant in a lawsuit) that takes up this position is admitting, for the purpose of the defense, that he or she did infringe the owner’s copyright, but that such a use constitutes a fair use of the material.  The reason that the use is or may be fair relates to Constitutional free speech rights.  This, however, does not mean that all such uses are a fair use, nor that the assertion of  fair use will always result in a successful defense to infringement.  Rather, to put forth a fair use defense is to assert the issue of speech rights into the argument.  In a lawsuit, the court then decides if  the act constitutes a fair use or not.  This decision is made by the court, the judge, by balancing certain statutory factors.  No single factor is dispositive (theoretically at least).  Generally, the judge will analyze the facts, apply them to each factor, consider which party is favored for each, and then come to a decision by balancing the overall result of the analysis.

 The statutory fair use factors are: 

  1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  2. the nature of the copyrighted work;
  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
  4. the effect of the use upon the potential market for or value of the copyrighted work.

 ~ 17 U.S.C. § 107 Limitations on Exclusive Rights:  Fair Use  (emphasis added).

In turn, these factors are defined by case law that has developed over time.  A few interesting cases to consider for research on the interpretation of the factors are:

Blanch v. Koons, 467 F.3d 244 (2nd Cir. 2006) 

Rogers v. Koons, 960 F.2d 301 (2nd Cir. 1992) 

Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994) 

Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1985) 

American Geophysical Union v. Texaco, 60 F.3d  913 (2nd Cir. 1994) (amended 1994 & 1995) 

Sony v. Universal City Studios, 464 U.S. 417 (1984) 

 

Related:

Fair Use (U.S. Copyright Office) 

Infringement and Fair Use (ArtUntitled.com)