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October 1st, 2014

Is the Fair Use Defense Just for Rich and Famous Appropriation Artists?

Richard Prince earned millions appropriating and manipulating Patrick Cariou's "Yes, Rasta" images. Prince's fame as an artist arguably enabled him to get away with it.

Richard Prince earned millions appropriating and manipulating Patrick Cariou’s “Yes, Rasta” images. His fame as an artist arguably enabled him to get away with it on fair use grounds.

Fair Use may be turning into a legal refuge primarily for “rich and fabulous” artists, according to a recent University of Chicago Law Review article by two Stanford scholars. They reached that conclusion by analyzing Patrick Cariou v. Richard Prince and other copyright disputes between artists over the past decade.

“This shift in fair use has predominantly protected big name defendants who appropriate from small name artists,” Andrew Gilden, one of the authors, told American Public Media’s Marketplace program on Monday.

The Marketplace report, by Sabri Ben-Achour, went on to say that in visual art copyright cases over the past decade, the wealthier artist has usually prevailed. “They’ve won defending against claims they copied someone else’s work, and they’ve won pursuing others for copying their work,” Ben-Achour reported.

Gilden and his co-author, Timothy Greene, argue in their law review article that wealthy artists prevail in part because of the high cost of defending an infringement claim on fair use grounds–something many work-a-day artists can’t afford. But wealthy artists also prevail, Gilden and Greene argue, because there is a cultural presumption that works are “transformative” when they appropriate material from unknown artists, then sell for high prices to an exclusive market. (Whether a disputed work “transforms” the original work is a primary test for a finding of fair use.)

Cariou v. Prince, for instance, was a dispute over a series of paintings and collages by Prince that appropriated images from Cariou’s book Yes, Rasta without permission. Most of Prince’s works eventually sold, fetching a total of  $10.4 million. Prince successfully fended off Cariou’s copyright infringement claim on fair use grounds, testifying in the process that Cariou’s work was just raw material for his own work.

But the argument for transformation doesn’t work in the other direction, i.e., when unknown artists appropriate from better-known artists and then argue that they’ve created a transformative work. That’s because works by famous artists just don’t seem like raw material to juries, judges or average citizens.

The illustrative case Gilden and Greene analyze in their article is Salinger v. Colting. J. D. Salinger sued Fredrik Colting, a little-known author, over Colting’s novel called 60 Years Later: Coming Through the Rye. Colting borrowed story lines and characters from Salinger’s Catcher in the Rye,  pretty much doing what Prince did when he appropriated Cariou’s work, Gilden and Greene suggest. But unlike Prince, Colting lost his case. (Both cases were finally adjudicated in the US Court of Appeals for the Second Circuit, which is in New York.)

As Gilden and Greene put it in their article, “Cariou makes fair use fairer for some, but there’s a real risk its virtues won’t be available to all.”

Related:
Richard Prince Did Not Infringe Patrick Cariou’s Photos, Appeals Court Says
S
upreme Court Declines to Hear Patrick Cariou’s Copyright Claim Against Richard Prince
Richard Prince Settles with Photographer Patrick Cariou

September 15th, 2014

New $10K Grant Will Send Newborn Babies Home From Hospital As Photo Collectors

A new $10,000 grant to support programs that engage new audiences with photography has been awarded to Pittsburgh photographer Matthew Conboy. The photographer won the grant, which was established by the non-profit Crusade for Art, for a proposal to send newborn babies at West Penn Hospital in Pittsburgh home with signed prints from local photographers.

Conboy took his inspiration for the project from a program created by a local hospital. There, they send each newborn home with a “Terrible Towel,” the yellow towel waved by fans at Pittsburgh Steelers NFL football games.

“While I am a proud Steelers Fan, I believe that babies could be sent home with something else that could change their lives and the lives of those around them: art,” Conboy wrote in his proposal.

The jury that awarded Conboy the grant included Museum of Contemporary Photography curator Karen Irvine, Colorado Photographic Arts Center executive director Rupert Jenkins, and New Yorker photo director Whitney Johnson.

Irvine and Crusade For Art executive director Jennifer Schwartz hailed the creativity of Conboy’s idea in a press release announcing the award. “We are excited to award this grant to someone whose idea feels completely original and unique,” Irvine said.

Conboy chose 12 local photographers—including himself—to participate in the program. Their work represents a broad spectrum of photographic interests. The program will run for one year, and Conboy estimates the group of artists will send 3500 newborn babies home with an original artwork. He also hopes to expand the project to include other hospitals in the region “and beyond,” he says.

July 10th, 2014

PDN Video: Mary Virginia Swanson on Selling Prints to Corporations

Mary Virginia Swanson on Selling Prints to Corporations from PDNOnline on Vimeo.

The corporate market for fine art prints has expanded on two fronts, says art photography consultant Mary Virginia Swanson. Corporations and corporate art consultants are both big purchasers of art, including photographic prints, for the walls of hotels, healthcare facilities, office buildings, and other business settings. In this video, Swanson explains the markets, and offers advice about how to tap into them, and price your prints for corporate buyers.

Related:
What to Expect from the Photographer/Gallery Relationship
Mary Virginia Swanson: How to Get the Most Out of a Portfolio Review
What Collectors Want (for PDN subscribers)

May 13th, 2014

Collector Sues Chicago Gallery for Damaging 54 of His Vivian Maier Prints

A photo collector who bought part of the Vivian Maier photo trove when Maier’s storage locker was auctioned off in 2007 has sued a Chicago gallery, Corbett vs. Dempsey, for damaging 54 images during a 2012 exhibition of the work, according to a report today in the Chicago Reader.

Vivian Maier, who was unknown as a photographer when she died in 2009, has since been promoted to stardom by the PR machine of collectors John Maloof and Jeffrey Goldstein. They bought the lion’s share of Maier’s negatives and prints at the 2007 auction and are not involved in the claim against Corbett vs. Dempsey.

The collector suing the gallery is Ron Slattery, who bought several thousand of Maier’s negatives and several thousand prints when her storage locker was auctioned. According to the Chicago Reader report, Slattery provided 56 of the prints to Corbett vs. Dempsey for an exhibition and sale that ran from June through December, 2012.

Two of the prints sold. The gallery returned the other 54 prints in damaged condition, Slattery claims. He alleges that the gallery used too much hinge glue to mount the photographs, and it soaked through the print paper, “severely distorting the images.”

Slattery’s claim also that the damage was “exacerbated” by exposure of the prints to “excessive heat,” and he alleges the gallery tried to cover up the damage, according to the Chicago Reader report.

The gallery says it admitted the damage to Slattery upon return of the images, and claims have made “multiple” offers to settle the claim for $8,700–the cost of repairs estimated by a restorer consulted by the gallery.

Slattery is seeking $200,000 in actual damages to the photographs, plus $2 million in punitive damages.

April 29th, 2014

Mark Ruwedel Wins 2014 Scotiabank Photography Award

"Tonopah and Tidewater #25," 2002. ©Mark Ruwedel, Courtesy Yossi Milo Gallery, New York.

Tonopah and Tidewater #25, 2002. ©Mark Ruwedel, Courtesy Yossi Milo Gallery, New York.

Landscape photographer Mark Ruwedel is the winner of the 2014 Scotiabank Photography Award, the bank announced this evening at an awards ceremony in Toronto.

In addition to receiving a $50,000 cash prize, Ruwedel will have a book of his work published by Steidl, and will have an exhibition at Ryerson Image Centre, Ryerson University, in Toronto.

“I’ve followed the development of Mark Ruwedel’s work with keen interest for over thirty years,” Edward Burtynsky, co-founder of the award and chair of the jury, said in a prepared statement. “He is a master of seeing and printing and has inspired countless landscape photographers.”

The two other finalist for the prize were Rodney Graham, a conceptual artist working in a variety of media including photography; and documentary photographer Donald Weber, who was one of the PDN‘s 30 in 2008.

The Scotiabank Photography Award was established four years ago to honor the work of contemporary Canadian photographers. Previous winners include Stan Douglas, Arnaud Maggs and Lynne Cohen.

This year’s finalists were selected by a three-member jury that included Robert Bean, an artist, writer and photography professor; Catherine Bédard, an art historian and Deputy-Director of the Canadian Cultural Centre; and Ann Thomas, Curator, Photographs Collection, at the National Gallery of Canada.

April 29th, 2014

ICP Celebrates Infinity Award Winners (Recap and Video Links)

Last night the International Center of Photography honored photographers working in photojournalism, fine-art and fashion at the 30th annual Infinity Awards. The awards were inaugurated in 1985 as a way to recognize outstanding achievements by photographers working in various genres within the medium.

It was the first Infinity Awards ceremony for new ICP director Mark Lubell, who promised the crowd that the organization would remain at the “center of the conversation” about the medium. Perhaps as a way to illustrate that point, ICP arranged for a drone to photograph partygoers during the cocktail hour, then put those photographs on-screen at the beginning of the ceremony.

The Cornell Capa Lifetime Achievement Award was given to German-born photographer Jürgen Schadeberg, who as an expatriate in South Africa during Apartheid, made some of the most famous images of Nelson Mandela, and encouraged black South African journalists to pick up cameras and tell their stories.

James Welling was honored for his contribution to fine-art photography; Steven Klein for fashion; Stephanie Sinclair and Jessica Dimmock were honored for photojournalism; Adam Broomberg and Oliver Chanarin were honored for their publication Holy Bible; and Samuel A. James received the Young Photographer award.

Sinclair and Dimmock received a standing ovation from the crowd for their work documenting the practice of child marriage and its effects on adolescent girls, their families and their communities. The project, “Too Young To Wed,” is a decade-long pursuit for Sinclair that has spawned a non-profit that she hopes will help young girls and communities do away with the practice of child marriage.

Samuel A. James, who in his young career has worked extensively in Nigeria documenting the impact of oil extraction on the culture—including photographing the illegal tapping of oil pipelines and makeshift refining operations by impoverished Nigerians—thanked the Nigerians who “gifted me these stories” during a short acceptance speech. James also dedicated the award to a friend who was killed in an explosion while attempting to refine black-market crude oil.

In accepting the Publication award for their book Holy Bible, for which they combined the King James Bible with images from the Archive of Modern Conflict, Broomberg and Chanarin called the book their “attempt to somehow illustrate this text,” and said they hoped it would be an invitation to others to make their own attempts. They also paid tribute to their publisher, Michael Mack for his production of the book, and to the Queen of England, who owns the copyright to the King James Bible.

In a slightly incongruous presentation, pop star Brooke Candy spoke about Steven Klein and introduced a high-octane video that reviewed much of Klein’s work. The fashion photographer briefly thanked the crowd after noting that, “photography pretty much saved my life.”

MediaStorm produced short documentary films about all of the recipients except Klein. Watch those films on the MediaStorm site here.

Related: Tour de Force: James Welling’s Artistic Versatility
Best Photo Books of 2013

April 24th, 2014

Exhibition in Bangladesh Remembers Garment Workers Who Died Tragically

lives-not-numbers-pulse

Photo © Taslima Akhter

A group exhibition currently open through the end of this week at the Pathshala South Asian Media Institute remembers the 1,134 garment workers who died on April 24, 2013 when Rana Plaza collapsed after years of neglect. The show, “1134—Lives Not Numbers,” was curated by Mahbubur Rahman and Munem Wasif, and includes contributions by photographers, performance artists, actors and others.

“Through the photographs of the needless deaths, through performance art reflecting the sorrow of the deprived, [the exhibition] attempts to leave a lasting mark on our collective psyche,” writes Pathshala founder Shahidul Alam about the exhibition.

The effort reminds us that our own understanding of this event has been heightened by the work of photographers like Taslima Akhter, whose photo of bodies in the rubble became famous around the world, and Abir Abdullah, whose project, “Deathtrap,” on the ongoing dangers of the garment factories in which millions of Bangladeshis work, won an Alexia Foundation grant.

Visit Alam’s blog to read more about this exhibition and check out a schedule of events.

April 10th, 2014

SFMOMA Announces Plan To Open Biggest Photo Center In US

The San Francisco Museum of Modern Art (SFMOMA) has announced that it will open a 15,500-square-foot space dedicated to photography as part of the renovation that has closed the museum until 2016.

Dubbed the Pritzker Center after lead donors John and Lisa Pritzker, the new photography facility will include an 11,000-square-foot exhibition space that will be the largest in the country permanently devoted to the display of photography, according to a statement released by SFMOMA. The facility will also include a new photographic study center and “an innovative interpretive space that will be the first of its kind in the country.” The upgrade to the museum’s photography department will also include a new curatorial position.

SFMOMA has also announced that more than 1,000 photographs have been added or pledged to their permanent collection by a group of San Francisco-based collectors led by David Mahoney and Winn Ellis.

“The new center, together with the gifts to our collection, represent a transformative development for our photography program and for the entire museum,” SFMOMA Director Neal Benezra said.

Read more about SFMOMA’s plans here.

April 2nd, 2014

Alexia Foundation, Open Society Calling for Submissions

The Alexia Foundation and the Open Society Foundations separately announced calls for submissions from photographers yesterday.

The Alexia Foundation issued a call for entries for its 2014 Women’s Initiative Grant, which will provide a $25,000 grant for the production of a project “on a significant issue involving and affecting women,” the foundation said in its announcement.

“Unlike the first Women’s Initiative grant, which specifically focused on abuse of women in the United States, this call for entries is intended to permit the photographer to propose a serious documentary photographic or multimedia project encompassing any issue involving women anywhere in the world,” the foundation says.

The deadline for grant applications is June 30, 2014. More details are available at the Alexia Foundation website.

Meanwhile, The Open Society Documentary Photography Project is calling for photo projects for an upcoming group exhibition on surveillance. The exhibition will include the work of five or six photographers, according to Open Society Foundations (OSF).

The deadline for applications is May 1, 2014.

“We are seeking photo-based projects that explore surveillance-related issues from a variety of perspectives. We encourage applicants to interpret the theme broadly,” OSF said in the announcement.

Called Moving Walls 22: Watching You, Watching Me: Photography in an Age of Surveillance, the exhibition is scheduled to run from October 29, 2014, to May 2015 at Open Society Foundations–New York. See the OSF website for complete application information.

March 28th, 2014

Court Reminds Michael Kenna: Copyright Protects Expression, Not Ideas

A ruling in a copyright infringement case involving photographer Michael Kenna has affirmed the principle that copyright does not protect ideas (or choice of subject matter). It protects only the expression of an idea.

That’s true under copyright law in the US, as well as in Korea, where a gallery representing Kenna sued Korea Air on Kenna’s behalf, according to a report in The Korea Times. The claim was that a photograph of South Korea’s Seok Island that appeared in ads around 2010 for Korea Air copied an image that Kenna shot of that island in 2007.

The Korea Times says that in rejecting the copyright claim, the court said: “When the subject is identical, it is the matter of preference of a photographer in deciding when, where and how to shoot. They are just two different ideas which can’t be protected by copyright law.”

The newspaper noted that the Korea Air photo was in color, while Kenna’s image was in black and white. Regarding the similarities in composition in both photos, a photographer quoted in the Korean Times article notes that there are few vantage points from which the islands can be photographed.

Related:
Infringement Claim Fails Because Law Protects Expression, Not Ideas
In Court, Copycats Prove Elusive (subscription required)