Etsy Liars, Instagram Thieves, and the Art of Law

When I was a kid, I was proud of my illustration skills. In the days before Photoshop, I believed art was verisimilitude. Then I went to art school, met painters and sculptors with far more talent than I, and discovered the importance of ideas in art. It would be many years before I would realize that voice and "personal brand"--as obnoxious a term as we've coined in this 21st century--matter as much in the world of artists as ideas and talent. So, while emerging artist and artisan clients (and potential clients) focus on concerns of copyright infringement and idea theft, I try to remind them (and myself) that law does not define art but the business of art.

It is unseemly to acknowledge the business of art, yet the world remains focused on the exploits of Richard Prince, who coined the concept of "appropriation art" many years ago. Prince made headlines recently for New York's Frieze art fair sales of appropriated Instagram photos blown up by Prince and sold at $90,000-$2 million. Artisans worry about sharing designs on Etsy for fear of other Etsy sellers mass producing the same design in China. Musicians read about the "Blurred Lines" decision and wonder if any of their signature rhythms and chords have been sampled by a 12-year-old kid with Pro-Tools and nefarious intentions.

The reality is this: maybe artists should focus more on dilution of trademark than infringement of copyright. Maybe they should wait before they unleash their work on the world until it's a body of work so distinctive, it becomes a protectable trademark. Successful artists make themselves so famous for a style, perspective, and personality that all works that exhibit an artist's "personal brand" are forever linked to the artist, questions of copyright be damned. We all know a Monet, Van Gogh, or a Gaudi when we see one. We all know a Bob Dylan, Aretha Franklin, or Eminem single when we hear one. They make their art their own. The artists in my school went on to attend RISD, FIT, Parsons, and SVA, and were more talented than Basquiat and Haring, but not nearly as successful in the business of art.

Related: Dr. Startup, or: How I Learned to Stop Complaining and Love the Micropayment

Copyright does not protect ideas. It is a notion that is enshrined in the United States Constitution, a personal and exclusive monopoly that is a product of law, not the canons of art. Richard Prince understands this. The uproar over his reproduction of others' photography has only added to his reputation and the worth of his "art." And what lawyer is necessarily the arbiter of the definition of art? Law may not be his canvas, but, as I've stated before, Prince has crafted a weakly transformative work, using flabby and inconsistent copyright case law as his palette. It's not such a leap to argue that law is codified philosophy. If Kafka believed that hunger can be art and Sylvia Plath believed that dying is an art, and Rauschenberg earned his bona fides in the art community with three giant white canvases, is it really so hard to believe that appropriation is an art, like anything else, one that Prince does exceptionally well?

Which brings me to Etsy, Instagram and artists struggling to make a living. Etsy is a business platform, and, like a courtroom, is not an arbiter of art. If one artist sells a handmade sculpture or jewelry, and another Etsy seller recreates the piece and manufactures it in China, the second seller most likely is violating the terms of service for Etsy, but may not even be violating copyright law. Yes, the law is unfair and unjust. The second seller may make much more money. But, in the eyes of artists and critics, is the second seller a fine artist or just a smart businessperson? And Instagram is public display of images. Is it so hard to believe that these images would be appropriated and commodified, rightly or wrongly? An award of money damages or lack thereof for copyright infringement would not affect the quality of artistry of the images, would it? But the practical truth is this: even with the law on your side, leverage is important, and that comes with money, access to resources, and personal brand.

Richard Prince "stole" one of the Instagram photos put out by lesser-known "artists" with a unique brand, SuicideGirls. SuicideGirls founder "Missy Suicide" decided to try to turn the tables: 

"...If I had a nickel for every time someone used our images without our permission in a commercial endeavour I’d be able to spend $90,000 on art. I was once really annoyed by Forever 21 selling shirts with our slightly altered images on them, but an Artist?

Richard Prince is an artist and he found the images we and our girls publish on instagram as representative of something worth commenting on, part of the zeitgeist, I guess? Thanks Richard!

I’m just bummed that his art is out of reach for people like me and the people portrayed in the art he is selling.

So we at SuicideGirls are going to sell the exact same prints people payed $90,000 for $90 each.

I hope you love them. Beautiful Art, 99.9% off the original price. ;)"

  ©  Who knows? taken from suicidegirls.com, because, why not? A fair use defense may or may not apply. Stay tuned.

© Who knows? taken from suicidegirls.com, because, why not? A fair use defense may or may not apply. Stay tuned.

Proceeds will ironically go to the Electronic Frontier Foundation, a non-profit not exactly known for zealously protecting copyright monopoly. She said that if Prince were to sue her, it would be "fucking awesome." Which probably misses the point, if she means that Prince's hypocrisy will be exposed. Art makes room for hypocrisy. Or... she totally gets it, because the value of SuicideGirl's distinctive personal brand has gone way up, thanks to Richard Prince, and would probably go through the roof in the event of a lawsuit.

My artist friends sometimes ask me if I miss practicing the visual and performing arts. I do. My filmmaker friends ask me if I would like to do a weekend shoot, for old time's sake. I would. But I'm busy now. I'm striving to make law practice an art, like anything else, to do exceptionally well.

Related: New York's Creepiest Photography Breaks No Law... But Artists Shouldn't Celebrate Yet