Bench & Bar

MAR 2018

The Bench & Bar magazine is published to provide members of the KBA with information that will increase their knowledge of the law, improve the practice of law, and assist in improving the quality of legal services for the citizenry.

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9 BENCH & BAR | better or worse. As is so often the case, artists often unwittingly push at the bound- aries of the law, and expose the limitations of copyright doctrine, which otherwise might remain unnoticed. Initially, courts were skeptical of the legit- imacy of appropriation art, and dismissive of its fair use claims. And the scapegoat was Jeff Koons. In 1980, Art Rogers created the photograph Puppies. He sold copies and licensed it for use by third parties, includ- ing on postcards. In 1987, Koons purchased a postcard of Puppies, and hired Demetz Studio in Ortessi, Italy to create four painted wooden sculptures based on the postcard. Koons sold three of the sculptures at his exhibition "Banality Show" for a total of $367,000, and kept the fourth. Rogers sued Koons for copyright infringement, and Koons claimed fair use. e court rejected Koons's defense, essentially because Koons's work parodied the banality of society at large, rather than Rogers's photograph in particular. 21 Koons was undeterred, probably because his profits far exceeded his losses. But probably also because he was cussedly determined to make his art his way. So he kept on appropriating. Andrea Blanch created the photograph Silk Sandals by Gucci, which was published as a Gucci ad in the August 2000 issue of Allure. Soon afterward, Koons created the painting Niagara, a collage of images from many different sources, includ- ing Blanch's photo. In 2003, Blanch sued Koons for copyright infringement. Koons claimed fair use, and the court agreed, hold- ing that his use of Blanch's photograph was transformative, because he used it to com- ment on society. 22 In 2015 another artist, Richard Prince, presented the show New Portraits at the Gagosian gallery. It consisted of 38 paint- ings, made by printing an Instagram post onto a large canvas. Essentially, Prince chose Instagram photos, made nonsensical comments on the posts, edited a screen- cap of the post to eliminate unwanted comments, and had the edited screencap printed onto a canvas. Some of the people whose posts he copied were flattered, but many were livid, and several have sued for copyright infringement . Prince claims fair use, but it is unclear how the court will decide. 23 Ultimately, courts struggle to apply copy- right to art and reach coherent results, because copyright doctrine is not designed to accommodate art world norms. Copy- right imagines works of authorship as expressive commodities, but contemporary art prizes inscrutable unique objects. e fair use doctrine asks judges to evaluate the justification for copying, but contemporary art disdains normativity. Some scholars argue that copyright should ignore art, because there is no market justification for copyright protection. 24 Yet, artists are among the most litigious copyright owners, despite their own proclivity to copy others. "Fair use for me, but not for thee" is the byline. THE LAW OF THE ART MARKET e "art market" is a euphemism for the rarefied market in fine art. Modern tech- nology enables the creation, reproduction, and distribution of art at a cost that asymp- totically approaches zero. But the art market abjures reproductions, unless they declare themselves originals, and depends on scarcity, rather than abundance. In an age of reproduction, the art market insists on the aura of authenticity. 25 Essentially, the art market is an insider market for positional goods. Leading sources of art market information esti- mate total sales of $45 to $55 billion per year. 26 But these estimates are tantamount to guesses, as reliable information about the art market is so scarce. Information about the "primary market" is almost nonexistent. And information about the "secondary market" is limited and unreliable. 27 A. THE PRIMARY MARKET The primary art market comprises the market in which artworks are sold for the first time. While art transactions take many forms, the paradigmatic sale is from gallery to collector. But which gallery, which col- lector, and why? at is the money question. The primary art market is notoriously exclusive and opaque. Commercial busi- nesses sell products to consumers at market prices. Art galleries do not. At least, the relevant ones do not. Commercial galler- ies sell works to all comers at more or less fixed prices, but galleries that constitute the primary art market do not. On the contrary, they put works on public display, with the implication those works are available for purchase. But they do not provide prices or offer to sell works to anyone but a select few. e hoi polloi get the brush off. ey can look at the art, but they can't actually buy it, at any price. 28 Only certain insiders can actually purchase works from the "market maker" galleries of the art market. And their degree of insider status determines their level of access and the price they must pay for any particular work. Often, galleries agree to sell especially desirable works subject to conditions. For example, a gallery may require a prospec- tive buyer to purchase two works by the same artist and agree to donate one to a museum. Many of the sales on the primary art market occur at exclusive art fairs held in vacation destinations around the world. And many more are works never shown to the public at all. e defining characteristic of the primary Andrea Blanch, Silk Sandals by Gucci (2000) & Jeff Koons, Niagara (2000)

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