Voice of the Artist 2016 by Copyright Agency

FOREWORD

Editor: Tristan Chant Marketing & Communications: Jenelle Dellar Publication Coordination: Nick Garner | Rococo Productions Cover Image Baden Pailthorpe F-35 (Seaquest), 2015. HD video 1920 (h) x 1080 (w) Sound: James Brown Ed. 5 + 2 AP © the artist Courtesy the artist & Martin Browne Contemporary, Sydney © licensed by Viscopy

Tristan Chant –––––––

BLURRY SCENES

Oliver Watts ––––––– 10

THE HERO IMAGE

Chloé Wolifson ––––––– 18

FAIR USE & THE DIGITAL CTRL. V ARTISTS IN A POST COPYRIGHT AGE ANTHEA BEHM

Jane Somerville ––––––– 28 Peter H. Johnson ––––––– 36 with Baden Pailthorpe & Marian Tubbs Jane Somerville ––––––– 48

(INTERVIEW)

JASON WING V. CAPTAIN COOK THE RISE OF THE FORGERY CHRISTOPHER HUDSON (INTERVIEW)

ISBN: 978-1-925404-01-2 © Authors, Artists, Contributors and Copyright Agency | Viscopy. All rights reserved. Reproduction without permission is prohibited. Published by Copyright Agency | Viscopy, 2016 Level 11, 66 Goulburn Street Sydney NSW 2000 Australia copyright.com.au viscopy.org.au rococoproductions.com

Bronwyn Bailey-Charteris ––––––– 58

Chloé Wolifson ––––––– 66 Bronwyn Bailey-Charteris ––––––– 76

FOREWORD

By the early 2000s we saw significant advances in how we consumed music. P2P file sharing services such as Napster, Limewire and Kazaa gave consumers access to vast collections of digitised music (while also giving rise to concerns over mass copyright infringement). With introduction of the iPod in 2001, the iTunes store in 2003 and the iPhone in 2007, music became affordable, accessible and mobile.

TRISTAN CHANT

In Australia, we are lucky to have what many would consider to be the first examples of recorded visual language.

If, in this new digital world, the 1990s were the age of the written word and the 2000s the age of music, then since 2010 we are certainly living in the age of the image. All we really need to do is look at the $1 billion acquisition of Instagram or most recent valuation of Pintrest (again $1 billion) to see the value society now places on the sharing of images. In a very real way images are now an essential part of our daily tools for communicating. So what does this mean for visual artists as the traditional makers of images? It creates an unprecedented level of opportunity for access to, and engagement with, their work and access to unlimited visual resources and inspiration. But with these opportunities come a number of concerns. Primarily, how do we maintain ownership and authenticity in an environment where we have little control over how art and images are shared?

Engravings found in the Olary region of South Australia are confirmed to be more than 35,000 years old, but many archeologists think there are examples, such as the Arnhem Land paintings of the megafauna species Genyornis, that could date back over 40,000 years. These early pictograms form the basis of early communication and represent the dawn of humanity's awareness of the world and a desire to share with others. It’s interesting to consider that over the 40 millennia or so since, images have continued to hold such an important role in the foundations of communication. Equally interesting are the tools we have developed to share the image. The past 30 years have seen the most accelerated technological growth since the Industrial Revolution in the 19th century. Between 1980 and 2015, human communication and interaction has been transformed by personal computing and online connectivity, which has arguably had the the single greatest impact on the creative arts in both the way we create and the way we share works. While personal computing was alive and well in the 80s, it wasn’t until the advent of the World Wide Web in the early 90s that we began to see the potential for the creative industries in the digital environment. Over the next two and a half decades, there were three distinct periods which impacted the creative arts. With the advancement of the World Wide Web, the delivery of text-based works changed overnight. Email, chatrooms and blogs were all commonplace on the Web by the late 90s. At the same time, we also began to see the mass digitisation of academic texts, technical manuals and popular fiction for libraries.

Voice of the Artist seeks to answer this question by looking at how copyright affects art and its dissemination. Contained within is a collection of articles, conversations and case studies in which artists and other arts professionals share their collective experience with copyright. Through interviews with artists Anthea Behm and Jason Wing, we discover how working with copyrighted material can shape artistic practices and provide unexpected outcomes. Head of publishing at MOMA Christopher Hudson discusses the state of art publishing for institutions in the modern age, while an article by Chloé Wolifson examines how the internet has increased the instance of art forgeries in the market place. Baden Pailthorpe and Marian Tubbs discuss the complexities of creating within digital environments and a case study on Tully Arnot’s Lonely Sculpture explores the phenomenon of viral memes. Jane Somerville's article on fair use looks at two high profile cases of appropriation in the United States.

Pages 6 & 7 Marian Tubbs transmission detox (screen shot) 2015–ongoing Webpages, analytics Courtesy of the artist & Minerva, Sydney & Station, Melbourne Commissioned by the Museum of Contemporary Art, Australia © licensed by Viscopy

What unifies these voices is an understanding that copyright is recognised as being an important and intrinsic part of the creative process and the legacy of an art work beyond the studio.

would not have been cheap. It is quite common (time permitting) to shoot a scene twice, once from an angle with the background the director artistically wants and again without copyright protected material for safety. The worry is that in the end people start jumping directly to the easiest one shoot solution.

BLURRY SCENES: the invisibility of art on film & television

A second more unlikely but enticing option was that the artist had refused a licence to show the work. For some, the idea of Kimye owning their art would be as embarrassing as the world finding out that Saddam Hussein had hung your 80s sci-fi paintings, for a short-lived period of your oeuvre, in his summer sex palace (as happened to the poor Rowena Morrill in 2003). But as I looked around television and print media, it occurred to me that everywhere I looked, where once you would have expected art, there was none. On architectural and interior design shows, art had been replaced by emptiness, a close crop, a feature wall or worse still the contestants' DIY canvases (whose copyright was ceded to the show in advance).

OLIVER WATTS The hope in watching reality television is that something happens to pierce the screen. As the shows get more professional, it is never what you think; it is not staged shock, or tears, or other abject performances. Not even celebrity sex tapes have the ability to breach the surface tension of media expectation and have become as acceptable in our time as a Mae West zinger.

Even in homeware ads in magazines, there was no art. John Berger had promised, for good or ill, that art was the status symbol par excellence, but instead mirrors seemed the replacement. I asked one of my friends in the furniture business and he pointed out that homeware brands do not sell art, they cannot get the units, but they do stock mirrors.

Once on the Kardashians, a different sort of realness caused a ripple on the facelifted smoothness of the show. A piece of the stage machinery, like a dropped light in the Truman Show, struck me. All the artwork in the apartment was blurred. Art had been effaced from the Kardashian universe.

My summary of the situation was that producers were anxious. The deadlines were so tight and the budgets sailing so close to the wind that it was easy, as an industry standard, to set the ‘risk of art’ free. I was once asked to license work to the program Rake, through my dealer, but that was the ABC and I guess drama has slightly longer time scales and just slightly bigger budgets. On the other hand, work I had done on a reality program as a storyboard artist was used without my permission within the televised show structure. I was not a member of Viscopy at that time and my own attempts to reclaim a licensing fee from both the producers and the broadcasters was met with a professional brushoff, putting me in an endless loop between the two as each blamed the other, ending in oblivion for my claim.

This mannered iconoclasm, with a bureaucratic computerised hand in post, made me immediately think outside the frame of the show. The more I thought about it, the more telling it was a sign of the society we live in and the effect of laws that control art and the image. Hipsters love the Kardashians because from a cultural perspective they are often an uncanny selfie of our times. But it is not good news for art. My first thought was that the harried producers were to blame for the erasure. Unable to secure a copyright licence in a timely manner, or simply lacking the will, the decision was made to shoot anyway to save time and to just edit out the work later. The making of reality TV is infamously cheap, and expense would undoubtedly have been another factor. In as many jurisdictions as the show is shown, the license no doubt

On the whole, our world is full of copyright protected objects and images that potentially open up producers to legal action. Although the incidental showing of art in documentaries and shows is allowed, the whole framework differs from national jurisdiction to jurisdiction and in

the absence of clear case law is deeply uncertain. In the vacuum that this hesitancy creates fear and angst prevails. It seems though that the test for whether it is incidental or not in Australia and the UK is tough. If there is any notion of a designed set, with placed objects or art, or any notion of choice, it would deem the use not incidental (as opposed to a news crew shooting a riot with public art in the background). Although to add to the uncertainty - that is not necessarily so - and there is not yet definitive case law in Australia.

away from the real and towards the poetic and yet authentic gesture of the painter. “Hi Oli, look sorry to say this at this late stage, but we might need to change a few things on the backdrops.” No problem, I thought. “We can’t use them as is…I have spoken to a few people and it’s just not possible, legally…the main problem is the designer furniture.”

I am worried that our artistic endeavours are being stifled by an industry standard that scares people away from the use of copyright protected material. This is the fault of the makers, the artists and other copyright holders as well as the users and abusers, the producers and directors. But on closer look, this is only part of the control over copyright protected objects. My approach however is not a legal one; I’m in fact really interested in what is not covered by the law. Even with the best laws in the world, and active copyright collecting agencies in Australia and its equivalents in other countries, it is also up to artists and the industry as a whole to embody the ethics of the situation fairly and decisively.

“What, because of copyright? Surely furniture is somehow incidental?” I said hopefully with a very weak grasp of what I was saying. “Look, what I have been told is if we can mask the designer furniture then it could be ok. It just can’t look recognisably like the design.” To cut a long story short, I did get a little upset. In hindsight, the producer was totally legally correct but there was an underlying precondition; she had been sued for copyright infringement only a few months before. I was dealing with someone who had been once bitten and was now twice shy.

—

I remembered the worried face of the producer as she appeared from behind one of my large canvas flats and entered my corner of the film studio. I had been painting backdrops for a video clip for two days, working hard to get the five scenes finished. They were to be shot last, and the director had done all the green screen stuff but everything was running quite late. It was already midnight and my parts were still to be shot. I had not completed my images yet either.

Oliver Watts quick sketch for five-legged Eames chair © licensed by Viscopy

—

Even from my very distanced position in the studio, I could feel and hear that everyone was a little stressed. The dancers were working really hard with the singer but there were a lot of takes, not least because the whole thing was aesthetically stripped down and each element was so crucial that it had to be very finished in itself. The director had workshopped the idea with me and we had decided that black and white line paintings would be a nice clean look for the clip. A fantastical approach that would have the real dancers and the star singer inhabit my hand painted spaces. It was an ‘arty’ move really, instead of doing drawings and then adding them to the background afterwards as matts, this was a latter day Mary Poppins move. The backdrops were the usual settings of a bachelor rockstar: warehouses, apartments and restaurants but as paintings. We wanted to boost the artificiality, to highlight the fiction, to move it

I asked petulantly for any ideas she might have to change the furniture that she would accept. I suggested it would be hard to signify that the protagonist was cool if he didn’t have readably cool stuff. As an example, she pointed to the Eames Eiffel chair in the apartment flat, and said, “You could add another leg to it.”

On the coal face of video clip production with very small budgets, this approach is common. A friend was working on a clip that asked for sophisticated clothing for a cast of sixteen. The proviso was that you could not use any known brands. Watches were particularly difficult to disguise. To sign the status of a group without signing the brands of actual clothes is almost impossible. In novel form, American Psycho showed how we all read people’s clothes, labels and designs with accuracy and interest. When it came to the film adaptation, certain brands were difficult to wrangle because their marketing staff were not sure if the association would be positive.

On another clip, a famous rockstar had cartoon stickers on his band guitar. When shooting started he was unable to use his own instrument because of the possible infringements

and had to use a clean, new version. Everyone knows that rockstars make everything they touch magically cooler and this would have no doubt happened to this undeserving cartoon. It seems ridiculous that a small gesture, a little totemic sticker, an action that primary school children might make on a pencil case, would become so problematic in a mediated and publishable form.

cultural capital. In the end Abramovic has said it was too one sided: “I was really naive in this kind of world. It was really new to me, and I had no idea that this would happen. It’s so cruel, it’s incredible. I will stay away from it for sure.” In a world of luxury brands, art is increasingly being sought as an important cultural marker that celebrities and television shows want to use.

It is perhaps Baudrillard who did the most work on how we now sign our status and identity through consumption. He called this activity broadly symbolic exchange, and for him it characterised our hyperreal world; even the London Riots seemed about looting jeans and other goods to become part of the matrix of a society based on brand recognition (a society that the rioters felt disconnected from through poverty and lack of buying power). If our artistic works cannot critically engage with this form of human activity, it is very hard for it to account for our complete lived experience.

It is unclear what the solution to this problem is. Intellectual Property is important, but at the same time you do not want a culture of fear that hampers the common use of the material of the world. Different jurisdictions have approached it differently. In France, it appears that its multiple analogous agencies to Copyright Agency and Viscopy actively seek usage in television and film and chases fees for artists who are fair but not oppressive or punitive. It is approached more like music usage on radio or copyright material in schools as an after payment. The industry in France seems to have embodied the rights of artists well with the needs of users and it is the model that Viscopy seems also to be pursuing in Australia. There have been many forays to have better links with industry, like the auction houses and television producers, to get a fair outcome for all and to which the use majority can agree. In this situation the use of copyright material is not such a big deal.

The flip-side of this control of use is its opposite, brand sponsorship. As film, television and music clips are increasingly pressed for cash, the opportunity to receive money in advance for product placement has become more common. When someone drinks a beer in film, the beer company has paid for it. Indeed, the most savvy brand agents do not even press for the label showing, knowing that for one it looks unnatural and for another, the bottle often does the trademark work more directly. Dr Dre headphones seem to appear in the first 15 seconds of every big budget music clip, because those headphones have paid for it; this form of marketing has been incredibly successful for this product and created for it almost a visual monopoly in the music scene. Or a friend highlighted to me that there was an era of French rap videos in which everyone was being really hard and ghetto until — in a slight breach of the gritty realism — everyone dashed off in a Smart car. These examples show the artificiality of the mise en scène, a sort of weird advertising truth where James Bond and the villain uncannily wear the same watch. Product placement and marketing generally is one of the real driving forces creating a culture of anxiety around the use of copyright material. Large companies like Mattel and Disney especially have been very active in pursuing misuse in works that in their mind do not fit the brand. If you look at the case law it is often the big corporations, not individual artists, which drive most actions. Copyright is used actively to clear the field of all brands so that sponsored brands stand out. To add a level of complexity, art is being used as its own brand placement. When Jay Z collaborated with Marina Abramovic, on Picasso Baby, he was no doubt trying to leverage her

In the United States where the case law is the most extensive, there’s a more open approach (but arguably too open, from the point of view of the artist). The act of painting my Eiffel Chair would no doubt mean that it could meet the transformational test in the States (which has even deemed Richard Prince’s copying transformational and therefore allowable). Interestingly too, for me personally, last year the courts decided that the use of furniture in sets, even designer furniture, in film and television, was acceptable and not an infringement.

In a globalised world where a film or show might be shipped around the world (Home and Away has been sold to 80 countries) again the baseline is to be risk averse. What is deemed legal in the States may not be so in the UK, so you move naturally to the tightest controls. I am sure it has never occurred to many visual artists to bankroll a video clip or to retain a brand manager. In a world where the deepest pockets control visibility, there is no doubt artists will find it harder and harder to be seen. Producers will continue to not engage art at all, or to pay for a very small percentage for certain artists that are good for a brand. Bodies such as Viscopy help in righting the balance, but the industry also has to accept payments and licensing as a standard, so that the law again can recede onto the backdrop.

THE HERO IMAGE CHLOÉ WOLIFSON

I first realised that Tully Arnot’s work Lonely Sculpture had gone viral in the winter of 2014. A then-single friend was discussing the benefits and pitfalls of Tinder. Because I knew virtually nothing about the smartphone dating app (blame the fact that I first met my partner in 2002, salad days for the Nokia 3315), in an attempt to contribute to the conversation I mentioned that I had recently been to an exhibition which included a sculpture that automatically and endlessly swiped right on Tinder. Often my attempts to slip contemporary art into ‘normal’ discussion will hit a wall, but in this case my friend’s eyes lit up. “I’ve seen that,” he said, poking around in his phone to reveal a gif (his favourite type of visual culture) showing Lonely Sculpture in action. I was quite surprised. Tully Arnot was experiencing growing recognition in the Australian art world at the time, but the exhibition I had seen was at a relatively new artistrun space in the back streets of Sydney’s Chippendale. It seemed unlikely that the friend in question had visited the MCA lately let alone Wellington St Projects. If Lonely Sculpture could go from being on a plinth in an ARI to being on the screen of that mobile phone, there must be more to the story.

Pages 64 & 65 Tully Arnot Digital Forest, 2015 artificial plants, servo motor, microcontrollers, light sensors Right Tully Arnot Lonely Sculpture, 2014 Cast silicone, servo motor, microcontroller, iPhone, Tinder app. Courtesy of the artist

INNOCUOUS BEGINNINGS

The digital realm is an extension of the studio space for many artists, with process shots being posted on blogs and social media. The original Lonely Sculpture video depicted an unfinished version of the work uploaded by Arnot to show his friends. “[I]t got a few dozen views and that was that,” recalls Arnot, but of course that wasn’t that. The nature of how audiences encounter and interact with art has also adapted to the virtual world, and in the case of Lonely Sculpture the virtual world discovered a work in its developmental stages. “Somehow it got picked up by a meme site a month later and from there it just took off, spreading across sites and evolving into articles,” Arnot says.

Lonely Sculpture is typical of Arnot’s practice, which interrogates the way we connect with the people and objects around us in an increasingly disconnected world. He has worked with microcontrollers and electronics along with cable ties, plastic straws, artificial plants and beer bottles. This electronic and digital experimentation combined with the office detritus reminiscent of any

Memes and virality are par for the course in our current era. Images take rapid flight from their original context, whizzing around the world, starting conversations and taking on new meaning. This phenomenon has not escaped the attention of artists. American artist David Horvitz has used the virtual world as his medium and message, generating, embedding and circulating images as experiments in viral behaviour and image attribution. Several works have seen him insert various images into the public domain via Wikipedia pages, with some such as Mood Disorder (2015) being used extensively (and anonymously) by websites on associated topics subsequently.

CHRONOLOGY OF A MEME

present-day start-up company represents many a contemporary studio. Arnot’s alchemy is to combine these concepts and functions of the digital and virtual with quotidian objects in such a way as to unsettle the audience and cause them to see the world around them in a new light. The work in question features a cast silicon finger hooked up to a motor. A microcontroller keeps the finger tapping away at the app on the smartphone positioned below. There is a certain shamelessness to the disembodied finger, even a suggestion of teledildonics, and the work not only encapsulates the disconnectedness of relationship-seeking in the 2010s, but also the desperation associated with the app (indeed the work has spawned several imitators who desired to use it in a completely unironic and unartistic context – more on that later).

It’s not hard to see how Lonely Sculpture could gain attention as a meme, its message on contemporary relationships neatly encapsulated in a few frames. Gifs like the one my friend showed me on his phone were taken from the video on Arnot’s Vimeo page and became popular on sites including Giphy, Tumblr and Reddit in early 2014. Shared without acknowledgement of its creator and entirely devoid of context, the footage spoke for itself, but not for its author. This led to coverage by a handful of sites in mid-2014, including technology sites Netloid and Wired Italy, before an explosion of coverage in November and December that year from news and technology sites including YAHOO! Tech, the Huffington Post and the New York Daily News, with ArtNet bringing up the rear.

Tully Arnot LonelySculpture.com, 2014 website screen shot Courtesy of the artist

While art audiences were late to the party the attention did eventually lead to career opportunities for Arnot who is consequently philosophical about the lack of credit: “I think this path is pretty normal for viral artworks – to first find audiences in quite superficial contexts where users chew through an incredible amount of content, and from [there] moving to more substantial platforms. I was lucky

to connect with a number of curators (who saw the work on meme sites by the way!) who helped exhibit the work in Asia, America, [the] UK, Europe and Russia.”

he recalls, although not everyone does the right thing when even on the face of it they might appear to. “Quite a lot of people will ask permission to display the video, but a lot also won't. Larger companies have sent me contracts… which I think are designed to streamline syndication but essentially give those companies a lot of freedom to post the video wherever and whenever they want, including altered versions. I didn't sign [those] but we agreed to use for the current article and that worked fine.”

VIRAL SYMPTOMS London-based French cartoonist Jean Jullien’s Eiffel Towerpeace sign was drawn on a whim in the wake of the Paris attacks. It garnered more than 175,000 likes on Instagram and became the profile picture du jour for those wanting to show their support for the city of light. Jullien subsequently wrote, “it is the worst way for me to be recognised as I normally try to make people smile with my work.”¹ So is this just death of the author 2.0, or does Arnot see advantages to having created a hero image? “Overall it's a really open and democratic way for artists to show work to diverse audiences, but at the same time I think there are a lot of risks in that,” he says. One “Do it Yourself: Automatic Tinder Finger” tutorial website included Lonely Sculpture as the ‘arty’ example in a robotic line-up, suggesting there is nothing new under the sun.² “I had a number of people copy the artwork. Even just last month a grad student at NYU emailed me asking how I made it, and then built a tacky replica of the work and shopped it around to trashy Buzzfeed-style websites trying to get hype. This is an extreme example, but the problem with viral or meme-based platforms is they've got a short memory and [are] overly hungry for content. This student got a bunch of articles and credit for something that was in no way original or creative. I think it's great if art makes its way into broader internet circles, but if artists are choosing to create works just for publicity or a fleeting ‘lol’ then that's no good.”

Arnot is aware that there is a limit to the suitability of this context to art. “Other licensing companies have contacted me about distributing the video – it sounded like they would try to make me some money from it but also wanted the right to post it anywhere,” he reveals. “If this was a video of my dog doing something cute maybe I'd sign up,

¹ @jean_jullien on instagram https://instagram.com/ p/-Jntq1hFPO/, 16th November 2015

CREDIT WHERE CREDIT’S DUE I wonder how important the law is to Arnot under these circumstances, and whether he is satisfied with the protections he is afforded by copyright? “For an artwork to get this level of exposure through viral networks, it's obviously benefitting from sharing economies, and for me the importance of legal protection is secondary to creative credit. After all, this video is documentation of an artwork [in progress] rather than a final exhibition piece, so restricting access to the video was never an issue for me.” Not only did the uncredited memes lead curators to Arnot’s work, but the majority of the articles that followed in rapid succession in late 2014 provided full acknowledgement of the artist. “Luckily, most people have credited me and provided links to the original file and my website,”

² http://makery.info/ en/2015/05/26/bricole-ityourself-tinder-au-doigtrobotise/ but as an artwork it would completely lose its integrity. They would tag on a distribution logo, have licensing information under the video…obviously the video has been displayed in some questionable places, but for me pursuing and monetising that is a step in the wrong direction.”

Tully Artot Nervous Plant, 2014 Artificial plant, servo motors, microcontroller, metal, electronics, light sensor, motion. Courtesy of the artist

OWNING IT

So how to take ownership of such circumstances in a way you’re comfortable with? Richard Prince, no stranger to appropriation, found the shoe was on the other foot when the Suicide Girls reclaimed his unauthorised use of their

work in his Instagram series. Prince’s prints on canvas sold for US$90,000, while the Suicide Girls subsequently reproduced identical prints which they priced at US$90, with profits going to charity. Prince seems to have forged a career on this ‘copy first, ask later’ approach which is only made easier (but is also more easily exposed) with digital technologies.

to design my own artificial plants as an extension of [my previous] robotic plant work – but basing them on a completely artificial form, rather than existing plant species. And I’m interested in how the production of these objects in factories will either accidentally or deliberately leak into a mainstream artificial plant economy – maybe once I've made my work, I'll sell the plant moulds back to the company and they will produce millions of these imaginary artificial plants for people to display in offices or shopping centres.”

Arnot took ownership of the circumstances by developing a website, lonelysculpture.com. Its catch phrase ‘Automate your love life’ seems a logical extension of Tinder’s ‘Like real life, but better.’ While lonelysculpture.com does actually sell unlimited versions of the work as manufactured product, Arnot sees the site as “mostly conceptual. Maybe in a way it was also pushing the work more towards these questionable contexts,” he said. The many people who have contacted Arnot about the work have included curators and artists, as well as people interested in using the work as a functional object. “From this I started to think in terms of the reverse readymade, instead of taking an everyday object and elevating it to artwork, how could I take this artwork and present it in an everyday functional way.”

Ian Milliss has argued for a redefinition of art that moves away from traditional art-world structures and towards any practice with cultural and social impact. He suggests that

“…if we define artists as those generating cultural change, then a more rigorous approach to defining and chasing down activities that may be culturally significant will produce a better understanding of art…”³ With this in mind, Lonely Sculpture’s journey from unfinished artwork documentation to reverse-engineered readymade, contributing to Tinder’s reported 1.4 billion swipes per day, could be seen as ‘like real art, but better.’

The project also raises questions about the nature of parallel market value systems. “You essentially have an identical object that is sold as a limited edition sculpture for a certain amount, and then the same object which is available for a lot cheaper but it's an unlimited edition. The value of the artwork is determined by what the audience chooses to pay – which isn't the primary idea behind the work, but it's another element which I considered when developing it.”

BEYOND THE HERO IMAGE How has this experience affected the evolution of Arnot’s practice more broadly? “I think it's been a natural progression to start developing my own mass produced or fabricated components to use for larger projects. I spend a lot of time soldering circuits and developing technology for new works and I see my practice really evolving when I approach this in a more industrial way…even though the lonelysculpture.com project is more conceptual, it was inevitable that I would start outsourcing some of the production of the work.” This mode of working combined with his current base of has led to new ideas. “I'm currently living in central China and really interested in how working with factories there can lead to a sort of assimilation of content. I want

Pages 73 & 74 David Horvitz Mood Disorder 2012 – ongoing, Installation view at Bielefelder Kunstverein in the exhibition “Transparencies” (7th November, 2015 – 17th January, 2016) Photo: Philipp Ottendörfer Courtesy of the artist & Chert, Berlin

³ Ian Milliss, Externalities, Runway Issue 27: Outside pub. (2015) http://runway.org.au/ externalities/

impact and effect of consumerism and the broader operation of culture and creativity in swwociety. One hundred years after Duchamp’s Fountain, the practice of incorporating existing objects and images into artworks is considered commonplace in art. Andy Warhol, Roy Lichtenstein and other Pop artists began incorporating copyrighted and trademarked images into their artworks and by the 1980s the idea took on new proportions: Jeff Koons put vacuum cleaners and basketballs in museum vitrines, while Richard Prince re-photographed cigarette advertisements cropped of marketing text for his Cowboys series. These works intended to examine the collapse of high and low art and sought to question whether the discussion of culture can be divorced from broader appreciations of society such as the politics of commercial advertising.

APPROPRIATION, COPYRIGHT, FAIR USE &THE DIGITAL AGE

Jeff Koons and Richard Prince might be considered poster boys for 1980s appropriation art. That both artists’ works sell for six- and seven-figure sums in the contemporary art market – and those commercial photographers whose images were appropriated don’t – certainly adds fuel to the fire when debating issues surrounding copyright and the contemporary art world. In 2011, Prince was quoted as follows:

‘Copyright has never interested me. For most of my life I owned half a stereo, so there was no point in suing me, but that’s changed now and it’s interesting … So, sometimes it’s better not to be successful and well-known and you can get away with much more. I knew what I was stealing 30 years ago but it didn’t matter because no one cared.’¹

JANE SOMERVILLE

‘Appropriation’ is a contemporary art term, which arose in the 1980s and refers to the way artists take ordinary objects and images with little transformation from their everyday contexts, elevating them to the status of art objects. Marcel Duchamp’s ‘readymade’ urinal, Fountain (1915) is the most famous early example although the practice has been part of Western art history since at least the Cubists, and arguably at various points throughout history. Via appropriation, artists sought to provoke new meanings and to interrogate notions of authenticity, authorship and originality – ideas heralded by Walter Benjamin’s seminal essay A Work of Art in the Age of Mechanical Reproduction published in 1934 and revisited in many debates about postmodernism in the 1980s. Discussions surrounding appropriation take into account ideas such as the influence,

However, there is a legal side to appropriating images – copyright law. Both Koons and Prince have faced accusations and allegations of copyright infringement from commercial photographers, which resulted in long court battles in the United States. Here we outline two of the famous cases chronicled through various international art magazines and websites. The centre of the debate is not the value of the cultural discourse of appropriation, but rather the infringement of property rights – and what constitutes ‘fair use’ of another person’s image. This has relevance to Australian artists due to the 2013 inquiry into copyright law and fair use conducted by the Australian Law Reform Commission (ALRC)² and the current Productivity Commission inquiry into Intellectual Property.

WHAT IS A COPYRIGHT INFRINGEMENT?

off the copyright information and sent it to his craftspeople in Italy asking them to reconstruct what was captured in the photograph with various alterations including slightly exaggerated features and bright colours.

Put simply, copyright infringement is when you use copyright material – for example images, words, music, video – without permission from the copyright holder. Copyright usually lasts for 70 years after the death of the creator. Generally speaking, one is able to use the material without permission if you do not use a “substantial part” of the work, or are making a fair dealing with the work for research or study news reporting or are commenting on, criticising or parodying the original.³

Rogers alleged that Koons’ sculpture (there were three copies) ‘constituted copies, reproductions or derivative works’ of his original photograph. However, there are substantial differences between the two works – Puppies is a black-and white photograph on a notecard, whereas String of puppies is a coloured sculpture displayed in a gallery on a plinth bathed in light like a religious icon. The photograph appears as a document or journalistic record, the sculpture embodies the kitsch aesthetic and in contemporary art terms represents a satirical critique of society.

WHAT IS ‘FAIR USE’? ‘Fair use’ is a defence against allegations of copyright infringement, which has been used in the United States since the late 1970s and was recommended by the ALRC as one reform to Australian copyright laws. Essentially it asks whether the appropriation was ‘fair’. What is ‘fair’ is not strictly defined; looking at the US cases, the courts have considered several factors when determining their judgement. These include examining the portion of the new work in relation to the copyright material, the nature and purpose of the work, the effect on the potential market of the original work and whether the new work has been published.⁴

Koons’ defence claimed ‘fair use by act of parody’ arguing that he had borrowed ‘information’ rather than ‘expression’ from Rogers’ photograph. If Koons merely copied the idea of two people holding eight puppies his work would not have constituted an infringement. Although he transformed a black-and-white photograph into a brightly coloured three-dimensional sculpture with several variations to the original image, the compositions and ‘expression’ of the image was deemed substantially similar to Rogers’ photograph and therefore declared an infringement.

As conflicting results in the two case studies briefly outlined below illustrate, the fair use defence is not necessarily straightforward and there are some aspects artists should be wary of when creating works using the images of others.

Art critics may interpret Koons’ work as a parody of pop culture. Interestingly this judgement made a distinction between parody in respect of a particular artwork and a satire of society in general as explained below:

JEFF KOONS V. ART ROGERS

‘even given that String of Puppies is a satirical critique of our materialistic society, it is difficult to discern any parody of the photograph Puppies itself.’ The court noted that viewers would not be aware of the original Puppies photograph, stating: “If an infringement of copyrightable expression could be justified as fair use solely on the basis of the infringer’s claim to a higher or different artistic use – without ensuring public awareness of the original work – there would be no practicable boundary to the fair use defense. Koons’ claim that his infringement of Rogers’ work is fair use solely because he is acting within an artistic tradition of commenting upon the commonplace thus cannot be accepted.’ ⁶

This case was heard in United States courts between 1989 and 1992 and it is often cited because Koons’ fair use argument did not succeed. It indicates that while artists may consider their appropriations to be connected to larger cultural histories, this in itself may not be enough to constitute fair use in legal terms. The work in question was Koons’ String of Puppies (1988), a garish sculpture that features a woman and man sitting side by side holding eight blue puppies between them. The highly-coloured three-dimensional work was based on a black-and-white photograph titled Puppies (1985) by commercial ‘Americana’ photographer Art Rogers and it was published in the form of a souvenir notecard that was sold in gift shops. Although the back of the card indicated that the photograph was under copyright, Koons did not contact Rogers for permission to use the image. He tore

RICHARD PRINCE V. PATRICK CARIOU

And what of those artists or photographers whose images are appropriated? It’s no question that today’s social media – where image sharing is a fundamental component – makes it harder for artists to control and protect the use of their images. Both Cariou and Rogers found that their images had been appropriated almost by accident. Cariou was directed to Prince’s Canal Zone works via a gallerist, and Rogers saw an image of Koon’s work in a newspaper.

Appropriating images is at the heart of Richard Prince’s oeuvre and it is a practice he has employed throughout his career. In a case between the artist and photographer Patrick Cariou (ultimately settled in 2014), Prince successfully appealed lower court findings of copyright infringement with the fair use defence. Prince’s Canal Zone series, exhibited in 2007 and 2008 at Gagosian Galleries, appropriated documentary photographs from Cariou’s book Yes Rasta published in 2000.

Potentially those artists whose work is appropriated can lose income from their work. There are resources that Australian artists can access through the Arts Law Centre of Australia and the Australian Copyright Council which outline copyright and infringement and give general advice about how to prepare and write ‘cease and desist’ letters.⁸ However, in reality, how many Australian artists can afford legal representation to fight a case?

Yes Rasta comprised black-and-white photographs taken during a six-year period when Cariou was living in Jamaica with Rastafarians. Prince found the book in a bookshop. He enlarged the original images, reproducing them as inkjet photographs and painted over the images in some sections – the most famous example saw a Rastafarian figure holding an electric guitar and the facial features obscured with blue paint.

A NEW CHAPTER: RICHARD PRINCE V. SOCIAL MEDIA In recent works the artist has turned to social media, appropriating portraits of people he found trawling through Instagram. The images, exhibited in the series New Portraits in 2014 at Gagosian Galleries and Frieze Art Fair in New York are presented enlarged on the gallery wall with the only alteration being the text of the artist’s own comments below the image. He reportedly did not seek permission from the subjects portrayed and, with a price tag ranging from $90,000 to $100,000 per portrait, the reactions of some of Prince’s subjects – ranging from disinterest to flattery to anger – have been voiced through social media channels.

With the exception of five works in the series, the appeals court agreed that Prince had transformed Cariou’s original landscape and portrait photographs imbuing the images with a new aesthetic with different meanings and associations. As the decision stated ‘Where Cariou’s serene and deliberately composed portraits and landscape photographs depict the natural beauty of the Rastafarians and their surrounding environs, … Prince’s crude and jarring works, on the other hand, are hectic and provocative.’⁷

THE TRANSFORMATION ARGUMENT What the two cases above illustrate is that artists have to be careful how they use appropriated imagery in their work. It is not enough to merely change the medium or present an image that addresses contemporary art discourses and argue transformation – the appropriated image must be imbued with a totally new meaning, aesthetic and interpretation. Even then, using images in the way Prince and Koons have – without verifying whether the image is subject to copyright – should not be done in a cavalier way.

One of Prince’s subjects, Doe Deere, wrote on Instagram:

Arguably, before embarking on a new work, artists should first ascertain whether the image they are inspired by is subject to copyright and if so, artists should contact the copyright holder for permission to use the image.

Other reactions from subjects have attempted to turn the tables on Prince’s appropriation and the contemporary art world. SuicideGirls, an alternative soft porn/pin-up website based in Los Angeles, created their own version of their image Prince had appropriated and sold it for $90,

‘Yes, my portrait is currently displayed at the Frieze Gallery in NYC …. Yes, it's just a screenshot (not a painting). No, I did not give my permission and yes, the controversial artist Richard Prince put it up anyway. It's already sold ($90K I've been told) during the VIP preview. No, I'm not gonna go after him. And nope, I have no idea who ended up with it!’⁹

_______________________

a blatant dig at the art market and Prince’s $90,000 price tag. The founder of the SuicideGirls project and website, known as Missy, stated:

Kinsella E., Outraged Photographer Sues Gagosian Gallery and Richard Prince for Copyright Infringement, Artnet News, Monday 4 January 2016, news.artnet.com 2 The report is online at: www.alrc.gov.au/sites/default/files/pdfs/ publications/final_report_alrc_122_2nd_december_2013_.pdf 3 For more information about copyright see: An introduction to Copyright in Australia, Australian Copyright Council, information sheet, March 2014 4 For more on a possible fair use defence in Australia see: www.alrc.gov.au/publications/4-case-fair-use-australia/what-fair-use 5 For more see Traub J. Art Rogers vs. Jeff Koons at designobserver.com 6 Legalities 30: Jeff Koons and Copyright Infringements, Owen, Wickersham & Erickson, www.owe.com/resources/legalities/30-jeffkoons-copyrightinfringement/ 7 Kennedy, R, Court Rules in Artist’s Favor, New York Times 25 April 2013 8 See information at: www.artslaw.com.au/info-sheets/info-sheet/ copyrightinfringement-and-letter-of-demand/ 9 Munro C. Prince Steals More Instagram Photographs and Sells Them for $100,000, Artnet News, 26 May 2015 10 Munro C. Payback for Richard Prince as Models Re-appropriate Stolen Instagram Images and Sell Them for $90, Artnet News, 27 May 2015, news.artnet.com 11 Kinsella E. op. cit. 12 Saltz J. Richard Prince’s Instagram Paintings Are Genius Trolling, Vulture, 23 September 2014, www.vulture.com 1

‘While I understand the conversation that he's trying to start, and that we're all talking about copyright and art in the digital age, I feel like $90,000 is a crazy amount to spend … He's starting this conversation while utilizing people that are from our sort of scene — girls that are beautiful and unique. They could benefit from $90,000 dollars. None of them could afford that. So we wanted to create something that they could afford.’¹⁰ And in recent news, it looks like Prince is returning to the law courts. In December 2015, Donald Graham brought a federal complaint against Prince, his dealer Larry Gagosian and Gagosian Galleries for unauthorised use of one of his images in New Portraits.

Graham’s black-and-white photograph titled Rastafarian Smoking a Joint was appropriated by Prince for New Portraits. Graham, a well-known photographer, took the photograph in 1996 while on a trek through the mountains of Jamaica with his photographic equipment. Graham’s images are subject to copyright and they sell in editions through his Paris dealer, A. Galerie, and his studio.¹¹

_______________________ The Productivity Commission has undertaken a government commissioned study of Australian copyright and produced a draft report which recommends a change from ‘fair dealing’ – where the main exceptions to copyright infringement are for the purposes of: review or criticism, research or study, news-reporting, or judicial proceedings – to the ‘fair use’ system similar to what is used in the US, which claims to balance the interests of copyright holders with the public interest.

Like the other New Portraits subjects, Graham addressed Prince’s use of his photograph on Instagram during the Prince exhibition, stating: ‘Appropriated Exhibit. The only way you'd know my work was a part of this display is…well, that's just it, you wouldn't know. #PrinceofAppropriation.’ In another post, Graham uploaded his image with the following text: ‘How to credit a work: 'Rastafarian Smoking a Joint' ©1997 Donald Graham. #PrinceofAppropriation.

The National Association for the Visual Arts (NAVA) is concerned that these proposed changes, in placing the burden on creators legally proving that a use is unfair, will seriously endanger the capacity for artists to earn copyright income. Accroding to NAVA's press release from 25 May 2016:

While artists using images appropriated from social media is, as New York based art critic Jerry Saltz wrote, ‘no different than an artist using any other material’¹², the fact is that the law of copyright still stands. So, one supposes only time will tell whether the ‘Prince of Appropriation’ can again defend his artwork, and allegations of copyright infringement, with the ‘fair use’ argument.

NAVA is concerned that a ‘fair use’ regime would be incredibly detrimental to artists. This is because it would create a power imbalance where artists would be at the mercy of large enterprises who could see this as an opportunity to use copyright material for free. The onus would be on the artist to prove in court that a use is not ‘fair.’ This is a significant change to current Australian law.

CTRL-V: artists working in a postcopyright age PETER H. JOHNSON with BADEN PAILTHORPE & MARIAN TUBBS

The more wonderful the means of communication, the more trivial, tawdry, or depressing its contents seemed to be. – Arthur C. Clarke, 2001: A Space Odyssey The entire two hours and forty one minutes of 2001: A Space Odyssey, the 1968 film directed by Stanley Kubrick, has been cut up and reproduced as 569 GIFs. For artist Jean-Baptiste Le Divelec, 2001: A GIF Odyssey (2016) is a provocation, testing the boundaries of ‘Fair Use’ in copyright law. Fair Use enables artists to appropriate copyrighted materials in a limited and transformative way in the creation of new creative works, including techniques such as sampling, remixing, and digital collage. By publishing it online without the permission of the Kubrick estate, and given the extent of unaltered material used, Le Divilec’s artwork almost certainly infringes on copyright. But should it and, if it does, should that be grounds for the work to be shut down or damages sought? Unknown to many artists working in Australia, this jurisdiction and most others have no such defence available to those working with copyrighted material.

Marian Tubbs dirt, 2015 pigment print on silk 70 x 100 cm, 2015 Courtesy of the artist & Minerva, Sydney & Station, Melbourne © licensed by Viscopy

Fair Use exceptions currently only exist in the United States, Poland, Israel and possibly a few other countries.¹ As such, artists using many forms of digital media do so at risk of attracting legal action from copyright holders, even if in most cases it is highly unlikely. For some artists, like Le Divilec, this is the express intention of their work, however for most they are simply making use of the visual technologies made available to them, and by which we all increasingly communicate. From fan-made trailers, to videos made in game engines (Machinima), memes, and image re-mixing practices (such as Seapunk and Vaporwave), copyrighted visual and audio materials are being used to create meaning and community. Artists working in online and digital spaces have adopted these same toolkits to create critical and self-reflexive works with the ability to provide powerful insight into the contemporary condition.

¹ International Copyright Basics’, Rights Direct, available at:. rightsdirect.com

and luxury materials. Many of her works feature images scrounged from the internet, recombined into digital collage or manipulated through image editing programs. I recently had the pleasure of working with Tubbs on the Museum of Contemporary Art Australia’s (MCA) first Online Commission, transmission detox (2015)², a series of interlinking webpages in part composed from found copyrighted video, audio and images.

² http://www.mca.com.au/ transmissiondetox

Peter H. Johnson: Under Australian copyright law, using a ‘significant part’ of a copyrighted work without the permission of the copyright holder is illegal. Does consideration of this impact on your practice and the way you go about making work?

Marian Tubbs transmission detox (screen shot) 2015–ongoing Webpages, analytics Courtesy of the artist & Minerva, Sydney & Station, Melbourne Commissioned by the Museum of Contemporary Art, Australia © licensed by Viscopy

Baden Pailthorpe: When I have made work from protected source material, I have always been guided by the principle of fair use. The final artwork has to be transformative enough to be considered a new creative work. I’m not interested in taking some existing work and pretending it’s mine, I’m interested in the cultural and political elements of existing artefacts, and how these elements can be transformed in a way that reveals new things about it or the mechanisms that produced it. I’m less interested in the politics of ownership than the politics and contexts of production.

Marian Tubbs: Yes and no. For a while now, toying with and flipping of value has been a core interest regarding my activities as an artist. I’m interested in how value is metaphorically implicated or changed or new value is created when different kinds of material – for your

The ostensible purpose of the Australian Copyright Act 1968 is to protect creators of artistic works from the unfair reproduction of their work, to ensure fair compensation and, consequently, to encourage the creation of further works. Despite a number of recent amendments to the Act designed to protect copyright owners in light of digital reproduction techniques, there has been little acknowledgement that use of copyrighted material is now part of both artistic and everyday vocabularies. While current copyright legislation provides vital avenues for artists to protect the presentation of their works, it currently falls short when it comes to reflecting the changing nature of artistic practice. Below is a conversation I facilitated between two earlycareer Australian artists, Baden Pailthorpe and Marian Tubbs, in order to provide insight into the impact of copyright on contemporary visual arts practices emerging online and in virtual spaces. Pailthorpe’s practice to date has explored the close relationship between the entertainment industry and the US military. His kaleidoscopic video artwork Very Few Good Men (2012), appropriates the opening scene of film A Few Good Men (1992), remixing the fetishistic representation of military weaponry and regalia. Other works, such as his Formation (2011) and Cadence (2013) series, employed the ARMA II gaming engine, manipulating models of US and Middle Eastern soldiers to perform absurdist gestures in the barren desert landscapes of the game world. Tubbs’ interest lies in value and materiality, expressed through both physical and digital assemblages of detritus

question, yes, which are probably copyrighted – are assembled into an artwork. I am fascinated with the boundaries of art, when we define something as such and why. What Baden mentions above is true for me also: I sense for myself what is a new creative work, although this is also nebulous – the blog http://who-wore-it-better. tumblr.com/ a case in point. I was fine with the fact that a more famous artist made a work very similar to mine two years later, I did however decline to show it again in an upcoming exhibition because of this. Honestly it’s how you view the conversation; as camaraderie or competition, and naturally I feel more socialistically inclined.

was sufficiently transformative so as not to constitute a significant part of any work, other than NASA’s video of trash circulation in the Pacific Ocean. Luckily, NASA allows for the free use of their content with credit, which you were able to include in the work. Visual communication is increasingly part of how people express themselves online and in real life. Copyright images, video and audio are a standard part of the lexicon for many, especially for producers, consumers, and prosumers of online content. Think: the creation and circulation of memes as novel forms of communication; almost everything on Tumblr; fan-made trailers and films; and Machinima. How do you feel about this? What does it mean for culture and cultural production more broadly? BP: Certainly these practices demonstrate a drastically shifting perception in general about ownership, and of what is easily grouped under the umbrella of ‘content’. I think it frees up cultural production in certain ways, but this can have surprising results. For example, Machinima is technically copyright infringement, but the biggest game studios have now adopted it as a crucial part of their marketing strategies. This is a rather telling example of the operational logics of late capitalism - instead of pursuing individual users for copyright infringement; they absorb it as a marketing tool. Video game studios harness the value of the user’s immaterial labour for their own gain.

Why I also say no is because a lot of my studio process involves forgetting, that is finding a place of ‘headlessness’ and trying to go against the rules that are apparent in my everyday work, such as being methodical, repeating actions to always get the same successful results. I have to forget the predictable. As an artist, I want to see the nascent and poetic potential in anything I have access to, that includes these apparently illegal images even their ‘significant parts’. PHJ: It’s interesting how many artists working in Australia assume that we have a Fair Use exception for working with copyrighted materials. I wonder if it’s just another symptom of America’s cultural hegemony, or the result of a ‘common sense’ approach to intellectual property, borne of both art historical traditions of appropriation and contemporary visual culture. I find your response especially interesting Marian, given how closely we considered the use of copyrighted material for your MCA commission, transmission detox. In the end, we decided that your work

³ 714 F. 3d 694 (2d Cir. 2013)

MT: I feel good about it; memes can be useful in providing lighter moments in lectures on philosophy. Determining what it means is fascinating because I think we are getting confused as to what people, societies, and corporations actually want. Google’s amicus curiae for Richard Prince’s defence in Cariou v. Prince,³ signalled that Google wants the laws in America to be loosened up and it is incredibly interesting that a conceptual artist is the one who has the agency to determine — or at least gives them the opportunity to influence — the boundaries of where the law is on this. That indeed there is a title now for ‘legal art’, art that actively questions and troubles the law is pretty awesome. Let us make no mistake though, corporations want money, and access to your images legally will help them out in a myriad of ways, some of which we know and others we don’t yet. People communicating visually and the way it is marketed with each technoinnovation signals many things too; modernist optimism (that increased speed of communication is always positive); new invented vernaculars which can be all kinds of things from more democratic, more complicated, and more cliché.

PHJ: The intersection of artistic works and usergenerated content on social media and other online platforms is fascinating. Take, for instance, Amalia Ulman’s durational Instagram performance, Excellences and Perfections (2014),⁴ in which the artist posted hundreds of images tracking a semi-fictional makeover, including breast augmentation, and exploring the relationship between identity, authenticity and a culture of excessive consumption. However by enacting her artwork through Instagram, Ulman has granted the Facebook-owned company ‘a non-exclusive, fully paid and royalty-free, worldwide, limited license to use, modify, delete from, add to, publicly perform, publicly display, reproduce and translate such Content’. Following from the question above, your works draw on these emerging artistic and cultural practices. How do you feel it relates to your work? Is this a conscious engagement with those forms of communication or simply using the available toolkits? Is it a practice born of immersion in a world increasingly embedded in visual ⁴ http://webenact.rhizome.org/ communication? excellences-and-perfections

BP: I’ve made Machinima in the past for a variety of reasons, some political and some practical. On one level, it is about using the available toolkit as you say - whatever you have around you. When you have limited resources, you need to use whatever you can get your hands on. In my case, video games were a big part of my childhood and I felt natural exploring them in ways that exceeded the intended use. Military video games and simulators provided a ready-made political context to explore. Once I understood the politics and assumptions that determined the way certain cultures were represented in such games, I could exploit that to make artworks that engaged with these assumptions. My series Cadence (2013) is an example of this kind of work. MT: Yes, it is straightforward. I am affected by the visual world, so I need to converse with it. I also want to complicate an agreeable conversation and provoke interest in looking at things differently. That is, if I use the ready at hand communication of a certain image and obscure it, we are conscious not only of its obstruction but we might question the truthfulness of the prior transmission as well. This is again about value and potential, taking things the way they are wondering how they might be different, and are actually different from initial levels of perception.

Pages 32 & 33 Baden Pailthorpe Cadence III, (2013) HD video, colour, stereo sound, 4 mins. Collection of the Art Gallery of South Australia, Newcastle Art Gallery and private collections. Right Baden Pailthorpe Formation VII, 2012 2 channel HD video colour, stereo sound 3 mins, 34 sec. Installation view, Martin Browne Contemporary, Sydney, 2012. Courtesy the artist & Martin Browne Contemporary, Sydney © licensed by Viscopy

PHJ: There seems to be something innately political, or at least critical, about artists working with these materials and in these fields. Content on the internet does not exist in isolation but is the result of an actively evolving complex of power relations between users, corporations and government, in a significantly more pronounced way than traditional media. The modes of production from which, for instance, oil paint as a medium arises are far removed from the social and technical relations of production of the internet. How do you see your re/use of copyrighted materials within artistic practice more broadly? I’m tempted to position it art historically within the frame of appropriation, however this falls short as it is not a simple dialogue between the rarefied actors in the art world. Would you say it is more similar to collage? Or simply using a new medium - like the invention of oil paint or photography? BP: I approach this kind of practice with an understanding that all forms of creative output are transformative. They don’t happen in a vacuum. In my case, it is closer to a new kind of medium or potential for the creation of new kinds of artworks. If I buy a game engine and use it like a film set, how is that really different to buying a camera and filming on a set? The ‘operation’ of the creativity is exactly the same, and the final outcome can be equally ‘cinematic’. When the visual languages and technical procedures of photography are replicated in such a precise, yet virtual way, it is as difficult to reach the threshold of originality as it is in traditional film or photography. New tools always pose new questions, and the complexities and intensities of our current situation can only be revealed by using tools that are similarly complex and intense. MT: I like how Baden got both Deleuzian and Heideggerian there but also resisted; I totally appreciate this answer, it resonates strongly. I will try to consider the question differently just for variety. Perhaps you could call some of my work uninhibited spatial collage, maybe there is more to it.

Marian Tubbs runoff, 2016 Micro-beads, bouncy balls, plastic flowers, dinosaur toys, jelly wax, copper gutter, 120 x 6 x 3 inches Installed in the exhibtion ‘Abstract Sex’, 8–29 May 2016, Hessel Museum of Art, New York. Courtesy of the artist & Minerva, Sydney & Station, Melbourne © licensed by Viscopy

an interview with ANTHEA BEHM JANE SOMERVILLE

Anthea Behm is an Australian artist based in Florida, USA whose work articulates a critical framework governing the use of images, their reproduction and circulation. This email exchange discusses Behm’s 2011 video installation Adorno/ Bueller as well as more recent works, which draw parallels between western art history and national politics.

Anthea Behm A/B Extract; Ed Ruscha, City, 1968, Custom Blur: Surface Blur radius 100 + threshold 2, Surface Blur radius 10 + threshold 203, Surface Blur radius 20 + threshold 85, Guassian blur radius 16.5 2011 Lambda print 48 x 55” Courtesy of the artist & Minerva, Sydney © licensed by Viscopy

Adorno/Bueller used the Art Institute of Chicago as a site. The artist encountered difficulties obtaining copyright and reproduction permissions with some of artworks on display in the museum. Behm’s solutions included using techniques such as blurring out the artworks in the video as well as providing an extended 484-word title to Adorno/ Bueller which listed all details of artworks reproduced and literally everybody involved in the making of the work.¹ The process also lead to another performative work including On This day (A play) (2014) which addressed the banal everyday contractual obligations we adhere to through our use of social media and the internet. Jane Somerville: Adorno/Bueller centres around two texts – one from aesthetics theory another from a 1980s pop-culture movie. What was your reasoning for using these two texts? Anthea Behm: It was the museum that came before the texts. When I arrived in Chicago in 2007, I suddenly had regular access to artworks that I had learned about, but

never seen in person. This issue of access is central to Adorno/Bueller – who has access to the museum, to understanding the artworks and the history of Modernism, to Adorno and to Ferris Bueller. Once I decided that I wanted to shoot in the Art Institute, it took over a year to receive permission to do so, even as a student of the school.

and as a viewer you are trying to understand what they are saying but are baffled at the same time about the actual content of their monologues! Was this your intention? AB: Yes, I placed these two scripts at opposite ends of the loop format, and over a series of performances one script changes into the other through word substitution. The scripts then repeat, but in reverse. So, the majority of the language in the video does not make sense, and this created ambiguity is the crux of the work. Through a poetic re-contextualisation of words, I was interested in creating a set of conditions for the potential production of new meanings and points of access.

After choosing the Art Institute as a site, the texts followed. I considered both – Theodor Adorno’s Aesthetic Theory (1970), and John Hughes’ movie Ferris Bueller’s Day Off (1986) – as already occupying the museum; Ferris Bueller because of the famous scene shot in the Art Institute, and Adorno in the discourse driving our understanding of Modernism. What I found particularly interesting about the texts is the way in which they seemed to mirror one another. Adorno was very critical of popular culture in the US, for instance, and Ferris Bueller did not believe in theory or – to use his language – “isms”.

The format of the loop enabled the reading of one position through the other and vice versa. For example, a life ruled by leisure from Bueller’s perspective may be seen as a charismatic expression of individual autonomy, personal conviction and celebration of free time. While from Adorno’s perspective, Bueller’s leisure time can only ever be short lived, as he must eventually return to school and conformity. This is to say, Adorno considered leisure time as serving the sole purpose of preparing the worker to go back to work. JS: The deliberate abstraction of text and the actions of the performers is mesmerising. They deliver their lines evenly

Anthea Behm production still from Adorno/Bueller single channel video 2011 Courtesy of the artist & Minerva, Sydney photo by Jesse Avina © licensed by Viscopy

Anthea Behm A/B Abstract unique diagram on paper 2011 9.8 x 7.2” Courtesy of the artist & Minerva, Sydney © licensed by Viscopy

JS: You ran into trouble obtaining copyright permissions to reproduce images of artworks in the installation that accompanied the video, which meant some works that you reproduced within the installation ended up as deliberately blurred images. Going back to when you were told you couldn’t reproduce the works as you intended; how did this change the work and your process of making it? AB: I never intended to make photographs—they came out of negotiating the (copyright) conditions that arose with making the video. I approached the copyright holders of the many modern artworks in the Art Institute of Chicago, mainly Artists Rights Society (ARS) and Visual Arts and Galleries Association (VAGA), to request permission to include the works in my video. I was authorised to do so in video form—for exhibitions in galleries and museums worldwide—but not in still image or online formats. Every time I show the work, I am also required to include the copyright credit of each individual artwork, so I decided

to put this in the title of the video, which is a long list including source material, cast, crew and funding. There were a couple of artists not represented by ARS and VAGA who declined my request altogether, so I shifted the camera’s frame to exclude these works. There was one artist’s studio that agreed to allow me to show their work, but required burdensome stipulations — a written request was needed every time the work was exhibited or screened, for example. That particular painting was in the background and barely noticeable, so I blurred it out in the video itself. JS: Your solution to blurring the works that you were denied permission to reproduce is a clever one – it brings to the fore ideas surrounding copyright, permissions and art. Was this concept intentional or something that arose because you were denied permission to reproduce the paintings?

Anthea Behm A/B Extract; Richard Hamilton, Towards a Definitive Statement on the Coming Trends in Men’s Wear and Accessories (c) Adonis in Y-Fronts, 1962, Custom Blur: Surface Blur radius 77 + threshold 56, Surface Blur radius 42 + threshold 80, Surface Blur radius 58 + threshold 65, Guassian blur radius 1.5 2011 Lambda print 32 x 24” Courtesy of the artist & Minerva, Sydney © licensed by Viscopy

AB: After signing the contracts from ARS and VAGA, I became interested in the different conditions that govern the reproduction of the paintings in the moving and still image formats. The photographs came from the conditions of reproduction outlined in the contracts. Blurring artworks when denied permission is a strategy used in reality TV. What interested me was that through the process of blurring—or abstracting—the conditions governing the reproduction of the artwork were formally registered in the image. This logic of clarity through abstraction is similar to the one at play in the script of the video. JS: Would you say that the creative process of Adorno/ Beuller was hampered by these legal/copyright issues? AB: No, but I am interested in systems of reproduction, circulation and distribution. JS: How would you suggest artists approach/negotiate reproduction permissions? AB: There are so many different strategies artists are working with today. Whether you work within the legal limitations, completely ignore them or are somewhere in between, there is no inherently critical position – criticality is always contingent. What may be relevant at one historical moment may not work in another – laws, technologies, and systems of distribution are constantly changing, as are interpretations and perceptions.

JS: Looking at your practice more broadly subverting meanings while also referencing art history and political issues seem to be recurring themes in your work. Would you agree with this assumption? AB: Yes, I’m interested in the social/political – which I see as inextricably linked with the material. Research is an important part of my process. Whether researching a text, image, object, or idea, I am interested in the material and social conditions of these forms, the digital and economic systems in which they operate, and the discourses that contribute to the production of their meaning. Particularly important is the formal and discursive connections and contradictions that emerge. I am interested in registering these contradictions and reworking them towards an alternate order – one that is often suppressed. JS: Contracts, and issues surrounding liability and consent are negotiated in the video work On This Day (A play). How did your ideas for this work come about? AB: After Adorno/Bueller I started thinking more about all the legal contracts we engage with on a daily basis—such as iTunes, Google Cloud and Facebook. I first performed On This Day (A play) at the Skowhegan School of Painting and Sculpture, a summer residency in Maine. Before arriving at Skowhegan, every participant was asked to sign a Liability and Consent Form and the Skowhegan Code of Conduct, among others. This gave me the idea to try a performance that utilised these contracts as script. JS: In some ways On This Day (A play) reinforces the banality of the jargon presented in contractual documents. I see an element of the absurd here. Would you agree? AB: Yes, absolutely. Unless you are familiar with the legal system, the language is absurd even when it’s still on the page. JS: The audience is forced to actively participate in On This Day (A play) through signing a consent form or wearing masks. What were some of the reactions of your audience when it is performed? AB: Everything is recorded now, and the masks/contracts engaged these conditions. The audience is always forced to participate in a performance, or any act of viewing, and is often used as props in the documentation of artworks, or by museums to include in their annual reviews or social media/PR. I don’t want my own image to be used in this way without my consent, and I don’t expect that my audiences would either.

Anthea Behm 30 seconds, April 29, 2015 Wildfire 18% Pepper Spray Stream & Wildfire 18% Pepper Gel on canvas 17 x 20” Courtesy of the artist & Minerva, Sydney © licensed by Viscopy

JS: You also work in painting using pepper spray as a material, which creates a beautiful abstract effect. Where did you get the idea to work with this material? _______________________ AB: I started making the paintings in 2013 after I moved to Florida for a teaching position. It was at the outset of mass demonstrations and protests taking place throughout the US against racially motivated crime – not long after Trayvon Martin had been shot and killed – and in the wake of Occupy. Aesthetic form and materiality have a long and ambiguous relationship to racial, class and social violence. At times artists pursue an autonomous practice and at other times an engaged one. Neither has been able to fully reach its aim and neither has been free from external instrumentalisation.

¹ The full title is as follows:

Anthea Behm Adorno/Bueller; Theodor W. Adorno, Aesthetic Theory, 1977, ed. Gretel Adorno and Rolf Tiedemann, trans. Robert Hullot-Kentor, University of Minnesota Press, 1997, pp 243-244; Ferris Bueller’s Day Off, dir. John Hughs, 1986, minutes 4:36-5:47. Scott Cupper, Shariba Rivers, Ben Veatch, Shawn Pfautsch, Carolyn Defrin, Jason Economus, Jennifer Shin. Richard Hamilton, Towards a Definitive Statement on the Coming Trends in Men’s Wear and Accessories (c) Adonis in Y-Fronts, 1962 © Artists Rights Society (ARS); Agnes Martin, Untitled #12, 1977 © ARS; Robert Rauschenberg, Persimmon, 1964 © Visual Artists and Galleries Association Inc. (VAGA); Roy Lichtenstein, Mirror in Six Panels, 1971 © Estate of Roy Lichtenstein; Roy Lichtenstein, George Washington, 1962 © Estate of Roy Lichtenstein; James Rosenquist, Volunteer, 1963-4 © VAGA; Alex Katz, Vincent and Tony, 1969 © VAGA; Ed Ruscha, City, 1968, Custom Blur: Surface Blur radius 100 + threshold 2, Surface Blur radius 10 + threshold 203, Surface Blur radius 20 + threshold 85, Guassian blur radius 16.5; Brice Marden, Rodeo, 1971 © ARS; Frank Stella, De la nada vida a la nada muerte, 1965 © ARS; Sam Francis, In Lovely Blueness No. 2, 1955-56 © ARS; Sol LeWitt, Wall Drawing #111: Circle with broken bands of color, 2003 ©ARS; Adolphe-Joseph-Thomas Monticelli, Still Life with Fruit and Wine Jug, 1874; Georges Seurat, Oil Sketch for “La Grande Jatte”, 1884; Georges Seurat, A Sunday on La Grande Jatte – 1884, 1884-86; Jitish Kallat, Public Notice 3, 2010, unilluminated, courtesy the artist; Jasper Johns, Corpse and Mirror II, 1974-75 © VAGA; Mark Rothko, Untitled (Purple, White, and Red), 1953 © ARS; John Chamberlain, Toy, 1961 © ARS; Joan Mitchell, City Landscape, 1955 © Estate of Joan Mitchell; Willem de Kooning, Excavation, 1950 © ARS; Willem de Kooning, Untitled, 1948-49 © ARS; Jackson Pollock, Greyed Rainbow, 1953 © ARS; Robert Motherwell, Wall Painting with Stripes, 1944 © VAGA; David Smith, Tanktotem I, 1952 © VAGA; Lucio Fontana, Concetto spaziale (Spatial Concept), 1962 © ARS; Willem de Kooning, Untitled XI, 1975 © ARS. The Art Institute of Chicago: Modern Wing, designed by Renzo Piano, 2009; Gallery 240, designed by Shepley, Rutan and Coolidge, 1893; Grand Staircase, designed by Shepley, Rutan and Coolidge, 1910. Steadicam, Director of Photography: Carl Wiedemann; Assistant Director: Danièle Wilmouth, Adebukola Bodunrin; Sound recording: Alan Strathmann, ChiaLin Hsu, Matt Griffin, Balta Pena; Steadicam Assistant: Tommy Heffron, Gonzalo Escobar, Anthony Rizzo; Production Assistant: Jessica Hyatt, C. Jacqueline Wood, Crispin Rosenkranz, Michael Milano, Jordan Scrivner, Caylin Colson, Jason Economus; Hair and Makeup: Mark Bazant; Still Photography: Jesse Avina, Jill Frank, Yasamin Ghanbari, Christopher Keener; Production Support: Staff and Security at Art Institute of Chicago, Faculty and Staff at School of the Art Institute of Chicago, Frédéric Moffet, Warren Cockerham, Yoni Goldstein, Tiffany Joy Ross, Susaan Jamshidi, Emjoy Gavino; Sound Mixing: Alan Strathmann; Color correction: JWJ Ferguson; Digital Compositing: Brock Jolet; Funding: Australian Government through the Australia Council, its arts funding and advisory body, The Ian Potter Cultural Trust 2011 13 minutes 28 seconds Courtesy the artist and Minerva, Sydney

Pepper spray and abstract painting have operated along this threshold. The former has been used as a tool of State suppression and is marketed as a means for individual freedom through self-defence. The latter, Abstract Expressionism for example, served as a tool of State propaganda during the Cold War and was marketed as a space of expressionistic freedom. JS: That relationship between Abstract Expressionist painting and American capitalism is highlighted in the pepper spray works like 30 seconds (2015). Art is often used to promote government campaigns (I immediately thought of the way Australian Aboriginal art is used to promote Australia); how do you view the relationship of art to government policy? What is the role of the artist in highlighting/drawing attention to such issues? AB: I think the question is whether or not it’s possible to create work that negates instrumentalisation, and it’s an important question. What is interesting about Abstract Expressionism, is the way it was being instrumentalised by the US government to promote capitalism on the one hand, while being discursively framed as autonomous on the other. Its supposed autonomy, its non-instrumental character, is precisely what enabled it to be instrumentalised. Yet, Institutional Critique, for example, which was decidedly not autonomous, was very quickly absorbed into the institutions it sought to challenge. Criticality then, always exists provisionally. This need not mark the end of criticality, but rather the need for its constant renewal.

JASON WING V CAPTAIN COOK BRONWYN BAILEY-CHARTERIS

In 2012, artist Jason Wing won the Parliament of NSW Aboriginal Art Prize with his work Australia was Stolen by Armed Robbery. The sculpture included a ready-made bust of Captain Cook. This subsequently became one of the most prominent copyright cases in Australiaâ&#x20AC;&#x2122;s history. In January I spoke to Wing to hear his side of the story and about the challenges of facing legal battles as an artist in this country. Bronwyn Bailey-Charteris: To begin with, please tell us about yourself. How did you first find art and know you wanted to make it? Jason Wing Captain James Crook, 2013 Bronze 60 x 60 x 30cm Courtesy of the artist ÂŠ licensed by Viscopy

Jason Wing: I was born and raised in the multicultural suburb of Cabramatta, Western Sydney, NSW. I am a Biripi man (maternal side) and I also have Australian, Scottish and Cantonese heritage (paternal). Art was the only subject at school which I was excelling at and my supportive parents and art teacher suggested that I apply for art school and I was accepted into Sydney College of the Arts. I am a kinaesthetic learner so I am hard-wired to express myself via the arts, specifically visual arts. I started making art

during 2006. When I experienced real social change as a result of one of my works, I was hooked and have been making art ever since.

BBC: How did you go about making the work? JW: I was inspired by my Palestinian warrior friend Rihab Charida who delivered a powerful speech about contested territories. She started her speech by stating that “Australia was stolen by armed robbery”. I made a note on my phone

BBC: Which artists do you admire the work of? JW: I love unknown Aboriginal artists who created the earliest artwork. I admire Guan Wei for his graphic style and themes of isolation and migration in strange lands. I also love Banksy’s work for his site specific interventions that subvert popular imagery with a social justice focus. I admire the work of the Guerrilla Girls who expose sexism, racism and corruption in politics, art, film and pop culture with facts, humour and outrageous visuals. BBC: You work in various mediums to examine social and cultural identity. What is your preferred medium? JW: I do not have a preferred medium. I am passionate about exploring new and unfamiliar mediums. I often have an idea then select the best medium for the visual or audible communication or solution for the idea. With each work, I try to go to the extreme opposite with the next work. BBC: Tell us about your experiences winning the 2012 Parliament of NSW Aboriginal Art Prize and your thinking behind the work Australia was Stolen by Armed Robbery. JW: I created the work specifically for NSW Parliament House. I would be more excited if NSW Parliament actually displayed my work amongst the numerous other busts of Colonial conquerors after the Prize. I was more excited about giving an unprepared speech from the heart to the politicians, dignitaries and mining company representatives in the room. I held up a mirror to them all about the current injustices, violations of human rights and current racial discrimination. I demanded that the current intervention policy be abolished as it is clearly a pernicious policy which allows mining companies unlimited access to mining on Aboriginal sacred land whilst demonising all Aboriginal people in the process. I rarely have direct access to politicians so the speech meant more to me than winning the prize. My bust of Captain Cook with a balaclava is an alternative to the “peaceful settlement” that is commonly perpetuated in Australian society. The Aboriginal perspective of “settlement” is the blatant theft and forceful invasion of this land and sea. My work subverts colonial heroes and monuments by labelling them as thieves, which is the truth. If this happened today, it would mean World War Three.

and I saw the visual solution in my head instantly. It was five years later that I saw the bust of Captain Cook for sale on Gumtree for $200, I then added a balaclava and the work was conceptually complete. BBC: Following media attention from the prize, the sculpture became the subject of an intellectual property and moral rights challenge. How were you informed about the case against you?

JW: I was informed about the complaint by a letter from the plaintiff’s lawyer. This was a shame as I would have been happy to go on this journey together if there was a discussion to begin with. It became a legal matter, so I had no choice but to lawyer-up and fight. BBC: And what was the case about? JW: The main complaint was a potential breach of intellectual property and moral rights. This was the perfect case to revise and update moral rights, intellectual property, copyright, artist’s protection, appropriation and the resale protocol. BBC: As you bought the bust from a third party, I understand the case also focused on the resale protocol. Can you tell us about this too? JW: The bust was purchased on Gumtree via a third party. There was no paperwork regarding governance, no edition numbers. The cost of the work ($200) suggested that it was a mass-produced item. Resale protocol is almost impossible to monitor once it has been sold as the artworld is one of the most unregulated industries. BBC: Can you describe the appropriation challenges in your case? JW: Appropriation transgresses the rules of copyright which makes intellectual property and moral rights very risky. It was extremely risky to test moral rights and intellectual property and would have been costly and possibly harmful to my reputation. Precedents do not carry much weight as each case is viewed as an individual case. It is risky and expensive for all involved, which might explain why most people try to avoid it. BBC: Did you have help in the defending your work? JW: I was quite disappointed that no arts law firms took the opportunity to revise and test all of the above. I was also hoping that high profile Aboriginal Arts Lawyers would take on the case, but they did not offer pro-bono work. I had to use a significant amount of my prize money to pay legal costs. I was also disappointed that I was refused any support from NSW Parliament. They had also received correspondence from the other party’s solicitors so were concerned about being dragged into

any litigation or controversy. I felt like I had been thrown under the bus and hung out to dry. I could not understand their position as they were now the owners of the work which was selected by independent judges.

of her personal money to fight the international intellectual property and copyright infringement. She reluctantly had to give up due to lack of finances. Unfortunately, this was another case of whoever has the most money wins. The copyright laws in other countries differ to Australian laws so this made fighting the case even more expensive as international lawyers were required.

BBC: How did the case settle? JW: The matter did not actually settle, after spending a lot of time & money we both reached a stalemate position and withdrew to our separate corners. I can not mention his name as it will just stir things up again.

BBC: What advice would you give artists who might be working in similar ways?

JW: UNSW Art & Design generously offered to help support me financially by producing a limited edition lithograph to raise money to help pay my huge legal fees. All prints sold within 24 hours. Working with Tess Allas, master printer Michael Kempson and the students has now inspired me to study all types of print media techniques, with a focus on screen printing.

JW: I would advise all artists to only post low resolution images of their work on their webpage or on social media to make it harder for people to lift and use imagery. I would not discourage anyone to use or embellish ready-made objects. It is an important art movement that needs to stay alive and I am sure that household names such as Jeff Koons, Damien Hirst and Marcel Duchamp would agree. I feel it is impossible for any two artists to create the same work. Every artist puts their own unique thumbprint on their work conceptually, artistically, historically and socially.

BBC: Has it changed the way you make work?

BBC: And finally, where can our readers see your work?

JW: No, not really. I believe artists have the right to use ready-made objects; to intervene, contextualise and add layers of conceptual meaning that do not exist in the original object. My intervention of the work falls under parody and satire, which is a copyright exception. I also covered up the original work by more than 50% and added new conceptual layers. Marcel Duchampâ&#x20AC;&#x2122;s urinal is a great example of this and is considered one of the most important artworks in the history of modern art. I did end up creating another version of the bust from scratch that the National Gallery of Australia purchased. I think that it is always better to create works from scratch however, it is important that artists are allowed to use ready-made objects and able to be free to express themselves in any way. I also feel that it is important for artists to credit other artists if they are heavily inspired and directly referencing them.

JW: My sound work Syrinx is touring nationally in the group show People like us curated by Felicity Fenner. I am conducting a Masters of Fine Arts at ANU on political posters, supervised by Alison Alder, one of the original members of Rebback Graphix, which is very exciting. I am curating both a group show at Alaska Projects midyear and the MCA Art Bar during October, and creating three major large scale works for the National Indigenous Art Triennial 2017.

BBC: Tell us about the lithographic prints you created and what opportunity they represented for you?

BBC: Have you ever heard of or met any other artists who have faced similar challenges with the law and copyright? JW: I know of a very famous female Sydney street artist who stumbled upon a dress made overseas with her unique imagery printed as the pattern on the fabric. The medium resolution image was ripped off her webpage and was not changed in any way. The artist spent over $10,000

THE RISE OF THE FORGERY: how the internet has increased instances of forgery and the misattribution of artworks CHLOÉ WOLIFSON

For as long as art has been valued, art forgers have sought to exploit that value – and the market has often found itself scrambling to keep up. As technologies have evolved, so have forgers’ methods. In order to appreciate the context of online forgery today it’s worth taking a walk down memory lane.

A BRIEF HISTORY OF FORGERY Even in antiquity forgery was no less abundant than today. Ancient Greek painters signed their students’ work as their own, in some of the first recorded instances of misattribution, while a Roman obsession with Hellenic art saw fakes designed to feed this new market. The dark ages saw the cessation of art collecting and forgers’ efforts shift to religious relics and documents whose value lay in their ability to inspire faith. The turnaround came in the Renaissance which not only

John Myatt Girl With a Pearl Earring (in the style of Johan Vermeer) 24” x 20” Courtesy and © the artist & Washington Green Fine Art

saw a rapid increase in the creation and collection of art, but also the value of particular works intrinsically linked to the name of their creators. This celebritybrand-value matrix has increased exponentially to the present day where it characterises not only the art market but most cultural production.

A key to the problem of fakes in art is collectors who “collect with their ears”, rather than with their eyes. In other words, it is an obsession with names of artists, instead of the quality of the art. Buying an autograph[ed] work, in the mind of a collector, equates with owning a piece of the artist’s genius, with the name of the artist as the cherished commodity, while the quality of the art object [is] often of secondary concern.¹ Along with this new brand recognition came a desire to own anything by a particular artist, leading to what Noah Charney describes in his 2015 book The Art of Forgery as a “parallel rise in forgeries”.² In the 17th century, collectors in Europe were taking precautions against forgeries entering their collections. According to Charney, by the 19th and 20th centuries there was such a demand for European artists by newlywealthy American collectors that a market for middle-men and forgeries opened up. Connoisseurs were relied upon almost entirely in the art authentication process throughout this time, up until the beginning of the 20th century, when new technologies, the dissemination of work as a result of war, as well as the advent of colour reproduction, threatened the field. While other innovations have developed, the word of these “pseudo-mystics”, as Charney describes them, continues to play a role in art authentication. Both scientific investigation and the

documented recording of a work’s history have evolved to replace or at least support the word of connoisseurs; however forgers have continued to find ways to outsmart both scientific evidence and a reliance on provenance. Famous forgery cases in the 20th and 21st centuries have been characterised by a desire to play with the art market, undeterred by relatively negligible consequences. In fact, consequences can ultimately be advantageous, as in the case of Wolfgang Beltracchi, who is one of the highest-profile forgers of the current era. Beltracchi’s victims, which include many high-profile clients such as actor Steve Martin, purchased works ‘by’ Heinrich Campendonk, Max Ernst and Fernand Léger. These were produced by Beltracchi and peddled by his family as having been part of their grandparents’ collection built in the 1920s. Plausible provenance, real names and ultimately high-quality work enabled the racket to continue until a production shortcut led to scientific testing and the scheme unravelled. According to Charney’s account, Beltracchi’s presence in court was romanticised by an apologist media – three of Germany’s leading newspapers compared him favourably with other white-collar embezzlers, claiming that his victims were asking to be fooled. After being convicted and serving six years in an open prison, Beltracchi was the subject of a documentary, Beltracchi: Art of Forgery, which premiered in Germany in 2014. Beltracchi’s treatment by the media and his own lack of remorse is echoed in many forgery cases of the last decades. British forger John Myatt was selling perfectly legal ‘genuine fakes’ in the late 1980s before one of his customers John Drewe suggested they go into business.

Drewe posed as an archivist, amending the catalogues raisonnés of various artists to include works Myatt had painted, corrupting the art historical record with this provenance trap. As Drewe became more ruthless in his exploitation of those around him, Myatt lost trust in their relationship and when the police came calling Myatt immediately cooperated. While Drewe has slipped into obscurity after serving two years of a six year sentence, Myatt’s career has gone from strength to strength. After serving four months of a one year sentence, he resumed painting, with his ‘genuine fakes’ now in demand. Like Beltracchi his life story has been optioned for film, and he also has his own television series showing off his talents.

FORGERY AT HOME While the Australian art market is relatively narrow, misattribution and forgery is rife amongst Aboriginal art, while other local forgery cases mirror international ones in their counterfeiting of well-known artists such as Albert Tucker, Brett Whiteley, Robert Dickerson and Charles Blackman. Forger William Blundell is one of the better-known culprits, and in a headline-grabbing case in more recent years, a conservator and dealer have been charged with forging Whiteleys. Major national museums are not immune to art fraud, and our own National Gallery of Australia was recently at the centre of a high-profile case resulting in the repatriation of the Dancing Shiva statue.

OWNING IT When art fraud is uncovered, it can be damaging to the industry. Where in the past skeletons were kept in the closet, art institutions have begun staging exhibitions like Intent to Deceive at the Reading Public Museum,³ Fakes and Forgeries at the Victoria and Albert

(curated by celebrated former head of Scotland Yard’s Arts & Antiques Unit Vernon Rapley),⁴ and Close examination: Fakes, mistakes & discoveries at the National Gallery, London⁵ - entering “a new era of transparency and honesty.” In March this year Melbourne’s Alcaston Gallery presented Provenance does matter: The collectors’ exhibition, presenting “artworks with impeccable provenance in the true meaning of the word: a direct, chronologically unbroken link from the current owner back to the artwork’s artist or author.” Alcaston Gallery’s educational approach is needed. Many collectors don’t submit a work for authentication until after purchase – often for estate planning, insurance, or to confirm their amazing find. Once the fake is discovered it “becomes a ‘hot potato’ that keeps circulating [in the market] once the truth about it is known.” The cycle continues, with many duped collectors falling victim to a single forgery. For the world outside the collector’s living room and bank balance, forgery has more damaging impacts. As Noah Charney describes, beyond its effects on the market of an artist, these new works distort the art-historical record and are crimes against cultural heritage as well as individual artists and collectors. In a broader sense, forgery threatens the perceived authenticity of art objects and the rigour of the system of checks and balances put in place around authentic art.⁷ So what happens when the art market shifts to a forum with even fewer checks and balances – specifically the World Wide Web?

THE ANTIQUES ROADSHOW MENTALITY Like almost every facet of life, the art world has not escaped the impact of the internet age. The ease and speed at which images of art can be viewed and

disseminated has had broad-reaching impacts on the entire art ecosystem, affecting the way audiences discover, view and purchase art. The value of the online art market in 2014 was estimated to be US$2.64 billion, up 19% from US$1.57 billion in 2013, as reported in the Hiscox Online Art Trade Report 2015. According to The European Fine Art Fair’s (TEFAF) Art Market Report of 2015, sales of art and antiques online were estimated to comprise around 6% of all global sales by value in 2014.

speaks to the fact that bidders at conventional auctions are becoming more comfortable with the online platform (Sotheby’s website has supported live auctions since 2010) and trust these houses to do their homework. Think of it as an extension of phone bidding, which collectors attending the high-end auction houses have been comfortable with for a long time. Although the old-school auction houses are getting back in the online game, it’s sight-unseen purchases from ‘clickand-buy’ platforms that are on the rise, accompanied by a risk of fraud for collectors.⁸ While established online auction sites like Auctionata, Paddle8 and Artnet have at least some authentication policies and practices in place to screen for fakes, eBay and Amazon are a different story. When commentators describe the internet as the world’s largest flea market it is these sites they have in mind, populated as they are with buyers who are “not as savvy as seasoned collectors who buy frequently from reputable auction houses or galleries and know what to look for”.⁹ This, combined with seller anonymity and the potential for competition from shill bidders, leaves the inexperienced or undereducated collector vulnerable.

While these big numbers might suggest some big buys, the individual purchases tell a different story. TEFAF’s report shows that in 2014 the majority of online sales were made in the US$1,000 – US$50,000 range – and it’s the

In 2002, the same time as Sotheby’s failed first foray into eBay, the UK’s Federal Trade Commission received nearly 50,000 complaints of internet auction fraud – double the previous year – making it the number one online-related complaint. The trend continued, and in 2008, seven people were charged in connection with a multi-million dollar criminal operation in which hundreds of forged ‘limitededition’ prints purporting to be the work of Picasso, Chagall, Miro, Dali and others were sold for up to US$50,000 many through eBay.

lower end where all the action is. UK insurance firm Hiscox found that 84% of online art buyers made purchases below £10,000, and of these the average price paid was less than £1,000. 51% of new collectors tested the waters with purchases below the £1,000 mark. It hasn’t always been this way. A collaborative project between Sotheby’s and eBay in the early 2000s ended not long after it began after failing to generate interest or profit. The relationship was rekindled in 2015 when eBay began streaming Sotheby’s auctions. The new venture

Alan Bamberger provides a detailed insight into the method employed by works-on-paper scammers of this kind on his site ArtBusiness.com. According to Bamberger, “The overwhelming majority of heliogravures you see for sale have been cut out of books and magazines, or have been removed from portfolios and had fake signatures added,” claiming that the most forged signatures are Picasso, Chagall, Miro, Dali and Matisse.

In 2014, Britain’s Sunday Telegraph revealed the identity of Geoffrey Spilman, who had sold hundreds of fake paintings through eBay. Spilman was initially caught out forging the work of a living British artist, Ashley Jackson, who explained that the forgeries have ‘a terrible effect on [his] reputation.’ (It’s not just duped buyers who suffer when forgeries enter the market.)

Spilman then turned to forging the work of deceased artists, potentially earning more than £1,000 per week selling most of the 280 authenticated paintings ‘by’ about 25 artists he listed over a two-year period. He claimed the paintings had belonged to his late father or were found at an art fair or house clearance. Crucially he declared that due to a lack of paperwork he could not guarantee the work’s true provenance, however he attempted to skirt the eBay guidelines with descriptions such as, “The starting price is low but I’ve seen similar pieces fetch reasonably high prices. I have no receipt or other history and in keeping with the rules of the site I’m selling after the artist.” This description plays into the mindset that traps many collectors into being conned. As art fraud expert Colette Loll puts it, “Art fraud is a confidence crime that takes two willing participants. People still believe that there are all these treasures out there and that they’re going to be the ones to discover them. There’s still this Antiques Roadshow mentality infiltrating the online marketplace.”¹⁰ While eBay has a clear policy against forgeries and does investigate complaints of counterfeits, employees do not vet works prior to sale. It took a tip-off from the Telegraph for eBay to shut down Spilman’s accounts and ban him for life from the site. Experts believe eBay and Amazon could apply more due diligence to the area¹¹, and as we will see, a potential solution is being developed for eBay. In any case, those purchasing art on eBay often don’t know the difference and are more likely to base their assessment on a vendor’s packing, shipping and customer service record. Recent research found at least 68% of online auction listings reviewed contained “incorrect information, conflicting information or omitted critical identifying information altogether.”¹²

John Myatt Charing Cross Railway Bridge (Early morning) (detail) 24” x 30” Courtesy and © the artist & Washington Green Fine Art

While there are several articles on the site written by eBay users themselves cautioning about the proliferation of fake art available on the platform, sellers seem unaffected by the forgery busts discussed above, with approximately onethird of listings recently reviewed in the online marketplace appearing intentionally deceptive in nature. Indeed, a quick scan of eBay reveals plenty of ‘Picasso’ ‘Dali’ & ‘Miro’ prints for sale. Given how easy it is to forge such a print this is no surprise. Bamberger has authored a satirical article on artbusiness.com entitled How Art Forgers Sell Fake Art on eBay and Make Big Money, which is essentially a how-to guide for forgers. Bamberger’s intentions are to provide an eye-opening insight into how it’s done – helping shoppers

to look twice at the proliferation of ‘limited-edition Picasso’ prints on the site.

online auction houses”, recently completing a year-long initiative in which “the most vulnerable segments in the art marketplace” were searched for obviously fraudulent and questionable listings. These were measured against Loll’s own classification system, one result being the implementation of an algorithm which will see offenders banned from the site. By Loll’s own admission, however, “they resurface on an alternative site or under another name. It’s a bit like that game Whack a Mole: we hit them, but they just pop up in another place.”¹³

While modern masters are easy fodder for eBay scammers, no art collector is safe on these sites regardless of their area of interest. From Roman coins and Pre-Columbian figurines to Keith Haring and Andy Warhol works, forgers have found many niches to exploit online. A far cry from cinematic art heists and Beltracchi-esque personality cults, this is fraud with small targets. As Charney notes, “For every high-profile forger…there are dozens if not hundreds of smaller-time forgers…who approach their art in a more basic manner – often without artistic skill or elaborate provenance – but who are nevertheless remarkably successful. These are the forgers who do not make the headlines, who are not artist-magicians, but simple, pragmatic criminals.”

However much the art marketplace may have evolved since the first forged artwork changed hands, the old adage still applies: caveat emptor.

CLOSING IN / IN CLOSING Charney believes that “while the digital universe has made life easier for forgers, it also has the potential to make their work difficult, if not altogether impossible.” He claims that the steadily falling cost of forensic analysis makes it possible to test every important object that appears on the secondary market, believing that the non-scientific appraisal of experts need not continue to be relied upon out of habit.

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Another digital innovation is i2M (i2mstandards.org), a standards-based technology that uses unique digital markers combined with a worldwide database to protect the authenticity of objects as they move through the market. Mobile condition report application Articheck (articheck.co.uk) includes the option to build a history of an object’s movement, exhibition and condition, which could help combat provenance issues when works come up for sale. While these tools are undoubtedly revolutionary for the higher end of the art market, where does this leave the small-time collectors falling prey to online scams where works cannot be viewed in person? Firstly, collectors need to become educated on the pitfalls of buying on these forums, and secondly, sites like eBay and Amazon need to become more accountable for what is listed on them. There is also hope in the form of a digital solution. Colette Loll of Art Fraud Insights, a company working out of Washington DC, has been working with “one of the largest

Grishin, S. Is that a Whiteley? Why collectors buy lousy fakes as 1 masterpieces, in The Conversation, 19 March 2015. See: theconversation.com 2 Charney, N. The Art of Forgery, pub. London: Phaidon Press Limited, 2015 3 Intent to Deceive: Fakes and Forgeries in the Art World, curated by Colette Loll, (8 June – 7 September 2015), Reading Public Museum, Reading, Pennsylvania 4 The Metropolitan Police Service’s Investigation of Fakes and Forgeries (23 January – 21 February 2010) Victoria & Albert Museum, London 5 Close examination: Fakes, Mistakes & Discoveries (30 June – 12 September 2010), The National Gallery, London. 6 Loll, C., Mass, J. & Zayne, N. Authenticity, Anxiety and the Art Market, in The Global Center of Innovation for the i2M Standards, 12 October 2015. See: i2mstandards.org 7 Keats, J. Forged: why fakes are the great art of our age, pub. Oxford University Press, 2013, p.23 8 Loll, Mass & Zayne, op.cit. 9 Kinsella, E. Dodgy eBay sellers peddle tall tales and fake art, in ArtNet, 9 July 2014 10 Crocker, L. Why eBay is an art forger’s paradise, in The Daily Beast, 19 August 2014 11 Duray, D. Online art sales are on the up – and so is fraud, in The Art Newspaper, 1 September 2015. 12 Loll, Mass & Zayne, op.cit. 13 Mould, P. Experts in the field of fakery, in The Telegraph, 13 October 2015 1

art and publishing: licensing and fair payment with CHRISTOPHER HUDSON, publisher at MoMA BRONWYN BAILEY-CHARTERIS

The world of publishing faces many challenges. The swings of the market as well as legislative, economic and technological forces affect the industry. Current industry hot topics include publishing in the digital age, the rise of piracy, educational publishing, open access and open data and what role legislation can play in copyright. One place where these questions can be discussed and dissected is the International Publishers Congress, whose 30th edition was held in Bangkok in March 2015. The congress sees itself as a platform for open discussion of the most important challenges facing the industry. Publishing superstars, entrepreneurs, copyright lawyers, educators and self-publishers from the Asian, European, American and African markets gathered to debate the issues of our times in the publishing sector. A presentation from Christopher Hudson, Publisher at MoMA, caught the attention of Voice of the Artist.

Hudson discussed the licensing of intellectual property, specifically in regards to visual arts. According to the World Intellectual Property Organisation (WIPO) ‘Intellectual property is a global overall term defining creations of the mind – in other words, ‘things’ that people create from their personal imagination’. Finding ways to licence and provide fair payment for intellectual property can be a minefield for visual artists and those who publish their works. Artists in the US must navigate such things as copyright, moral rights, fair use, reversion, territory, fees and royalties. For the publishers, those who negotiate with artists for use of their works and images of it, it is also a complex system of multiple stakeholders and conditions. We caught up with Hudson during the New York blizzards and he kindly shared his thoughts on his work at MoMA and specifically licensing and fair payments for artists. Bronwyn Bailey-Charteris: Tell us about your work at MoMA. What is your role there? Christopher Hudson: I’m the publisher, and we publish about 25 new books each year, of which around a third are exhibition catalogues and the rest are otherwise related to our collections or research or programming in the modern and contemporary arts fields. There are 13 people in the group that produces books and texts for exhibitions, but museum publishing is an intensively collaborative endeavour that involves many others, especially in the curatorial, imaging and development areas. BBC: How do you see the role of MoMA, and your work in particular, in working with artists and galleries when it comes to licensing and fair payment in publishing?

CH: We’re strongly supportive of the artist community, and of course are often in contact with the galleries that represent the artists we are involved with.

Of course, there are some distinctions between commercial activities that may be appropriate for galleries and the educational and scholarly activities that are appropriate for museums, so the overlap isn’t exact. BBC: When an artwork is purchased for the MoMA collection, what kind of negotiations take place with the artist around images, specifically in regard to licensing? CH: There are cultural, educational, and scholarly activities that the Museum undertakes and that seek to foster public understanding and appreciation of art generally and of the particular artist’s work; so we think that a Non-Exclusive Licence is usually appropriate, that is to say, a licence that does not restrict the artist from exploiting his or her work elsewhere but that gives the museum the right to use it without further fee for those educational (but not purely commercial) purposes. BBC: What do you advise artists to negotiate for when they are working with publications? CH: You know, I think careful selection of the publishing partner is as important as, or maybe more important than, a definitive list of demands. In other words, you probably want someone who is going to be committed to faithful colour reproduction, and to your views about cropping or overprinting, and so on; but you also don’t want to be so inflexible as to unnecessarily limit the market for the publication, or to make it impossibly expensive to produce. BBC: What happens when there are multiple rightsholders to the same image? CH: Well, a very common example of that is a photograph, in which not only the photographer holds a right, but so may the subject of the photograph.

Galella vs. Onassis went against the photographer. Nussenzweig vs. di Corcia went in favour of the photographer. BBC: Many of the readers of this interview will be starting out as publishers themselves, or artists who might be selfpublishing and it would be great for them to hear about the image logbook process and how this works for publications. How does this process work and why it is such an efficient way of working with images and publications? CH: Well, lots of people are involved in the publishing process - in our case it’s curators, editors, production people, curatorial assistants, interns, as well as designers, colour separators and printers. A good image log captures the information that any one of these people may need at any time, and eliminates endless back-and-forth about whether an image can be shifted, cropped, used in a particular way and so on. The information we put in the log, along with a low-resolution copy of the image itself, is: work, artist, title, date, collection, accession number, rights holders, credit lines, permission fees, special conditions, requests for complimentary copies, etc. BBC: Do you have any other advice for artists or galleries taking part in this process? CH: Just that developing good relationships is always a good idea and remembering that it’s an eco-system that can benefit all parties, if there’s mutual respect and reasonable give-and-take on all sides. BBC: What do you find rewarding about your work with publications? CH: What’s not to like about working in the cultural sector, dealing with art daily, and – when I consider what my life might have been if I’d gone into government or politics or so many other areas – being

able to sleep with a good conscience every night! BBC: Do you think printed materials will ever stop being made completely, and potentially be replaced with all online content? CH: I don’t know. The only thing I know for sure is that three things are certain: death, taxes and that the futurologists always get it wrong. I do think that we are in a hugely disruptive time when it comes to print and publishing, and that the last time it was quite this disruptive was in the 1440s. But it took a hundred years after that for publishing as we knew it for 450 years to emerge, and I think it may take as long until there’s a similarly stable reinvention of the business. BBC: Artists are now able to display their work and even create work for the online environment directly. To what extent do you think visual artists have been impacted – either positively or negatively – by the online environment in regards to publications? CH: Oh, there’s no short answer to that one, either. The impact is huge, and it’s both positive (in terms of choice and innovation and range of possibilities and material and options and outreach) and negative (in terms of management and control and piracy and unintended outcomes and securing a reasonable income share for content creators).

Picasso Sculpture Edited by Ann Temkin and Anne Umland. Esaays by Virginie Perdrisot, Luise Mahler and Nancy Lim, MoMA, 2015

age of the image