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Theft, Copyright Violations, and Fair Use–Plus Nudity, Erotica, and Pornography

Joe Wallace South Korea Street Photos103The above image is one I took in Seoul, South Korea back in 2005. Yes, Ms. Donuts is exactly what you think it is–a donut and coffee shop using a variation of the registered trademark of a different company.

To be sure, trademarks and copyright are quite different in terms of the law, how the law is enforced, and the application of Fair Use. But it’s a funny image, especially for anyone who has visited Seoul and knows of the ubiquity of such practices there–I’ve frequented “Bucks Coffee”, with a very familiar green and white logo in South Korea, as well as many other establishments advertising themselves in ways that look amusingly familiar to Western visitors.

But what’s the point?

Well, I suppose it’s that appropriation is EVERYWHERE.

It’s not just the domain of musicians who like to sample, mash-up, and repurpose other works; it’s not exclusive to visual artists who want to make other statements with existing material. When it comes to copyright (as opposed to trademarks), Fair Use is a legal gray area that has many people–including those in the legal system responsible for enforcing copyright laws–scrambling to apply standards that are fluid by nature and depend greatly on circumstance.

I have many artist and musician friends who do not understand Fair Use laws. There are many myths. “You can use under 10 seconds of anything and get away with it” is one of the most popular. Another is that repurposing the original work in a different context or commenting on it is bulletproof protection against legal action.

Neither of these things are true–each and every Fair Use case will be dealt with on an individual basis and in spite of miles of case law, individual circumstances will still loom large in any copyright case involving Fair Use.

I learned all of these things thanks to a series of classes I took in 2014 via Berklee Online, the web learning arm of the Berklee College of Music

Since a significant portion of my work is affected by Fair Use, I thought it important to become more literate about the laws that could affect me.  To that end, I strongly recommend the lengthy but quite informative volume of copyright case law, Copyright Cases and Materials 8th Edition (Hardcover Edition), by Gorman and Ginsburg.

But there’s another reason why I am writing about Fair Use here; I am working on a new installation called Adult Landscapes which leans heavily on appropriation and Fair Use–with a means to an end.

In the same way that anyone who studies Fair Use will discover how many shades of grey there are with the law, there is a similarly murky topic that my art show addresses with respect to nudity, eroticism, and pornography. At what point does one become the other? What are the boundaries between simple nudity and eroticism? And when does the erotic become pornographic?

As you might guess, there are no good answers to those questions, in the same manner that you can’t get a court of law to state definitively what constitutes Fair Use, and when Fair Use blurs into blatant copyright violations.

And a more important question is, SHOULD the courts make such a distinction? In the same way that it seems completely wrongheaded to declare the mere appearance of a naked body in art as pornography, it feels similarly misguided to lay down a specific line in the sand about copyright and Fair Use.

I am exploring all these ideas with Adult Landscapes. The show will be a mixed-media installation art piece featuring photography, audio, and video appropriated and recontextualized for the show. The photographs I took and edited for this show involve vintage men’s magazines layed out in a variety of “poses” involving single pages, multiple pages and multiple magazines–the centerfolds of multiple magazines comprise MY “centerfold photography”.

But it doesn’t stop there. I have also photographed and collaged a number of the advertisements from these magazines–selected mainly for content–and presented as supplementary images. The selective editing and manipulations I have done to the photos in the post-production environment accomplishes several things, but one of my main goals was to remove the most blatantly clinical aspects of the original images in favor of more suggestive and less revealing images. More “R-Rated” and less “XXX”.

This was done for several reasons–one being my own personal aesthetic, preferring suggestion over what Kurt Vonnegut referred to in his novel Breakfast Of Champions as “wide-open beavers”. But I also wanted to recontextualize the images enough to avoid a blatant, wholesale reproduction of the original images–that doesn’t fit my own personal standards when it comes to creating art or displaying something as your own work (as opposed to curation).

So there’s a lot of grey area going on here. When does my work stop being appropriation and recontextualization and start being a simple reproduction of the original? How much nudity can my show display before it crosses out of “nude and/or erotic” and into “pornographic”?

I believe that good art raises far more questions than it addresses, so I am happy to be working on an installation where I do not have the answers–I feel I am evolving my own position on these things along with the viewer. And that is an important part of my work–keeping it personal, keeping it out of easy-to-digest territory and making the work as difficult for me as it might be for anyone who views it.

–Joe Wallace