Could we get sued? That was my first reaction when I read a recent New York Times report on Illegal Art: Freedom of Expression in the Corporate Age, the art exhibit coming to the In These Times offices. Law professor Edward Samuels claims that “half the exhibition is in violation” of copyright law. Paul McCartney’s spokesman, meanwhile, suggests that the show’s organizers are akin to media pirates. I could already envision the cease-and-desist letters, the harassment, the headaches … in a word, I was chilled.
Organized by Stay Free! magazine, the show opened in New York in November; it examines visual, video and audio art that lives on the fringes of intellectual property law. The legal battles surrounding these pieces — the “degenerate art” of our times — illuminate current struggles in copyright, trademark and patent regulation. Bringing these works of art together for the public to see and hear serves an important educational purpose — one that’s protected under “fair use” provisions in the law.
The scare tactics against fair use are central to the dynamics that Illegal Art explores. Artists who dare to “sample” images, sounds and words from the torrent of what passes for our public life, and who dare to re-present them in critical contexts without paying exorbitant licensing fees, are labeled “thieves” or “pirates.” The symbols and characters that permeate Americans’ mental environment are presented to us as trusted friends, but when commentators dare to engage with these friends directly, they revert to the status of “property.”
Stay Free! and In These Times share a concern about the encroachment of corporate ideas, interests and images on everyday life. Carrie McLaren, editor and publisher of Stay Free! and curator of the Illegal Art exhibit, puts it this way: “The stakes in the copyright wars are enormous, for the content industries and for their critics. … The U.S. doesn’t manufacture things anymore; it manufactures brands, images and perceptions — that’s where the money is. So for those of us in the trenches, guaranteeing open access to cultural material isn’t going to be easy.”
The growth of copyright controls reflects a general trend toward privatizing resources that were once open for all to use. Regulation of the physical commons — from lakes and rivers to the electromagnetic spectrum — against the abuse of private power is needed for the public good. But in the world of ideas and content, our “creative commons” need less regulation, not more.
The aggressive expansion of intellectual property control threatens researchers’ ability to “quote” digitized materials, archivists’ efforts to preserve works whose owners can’t be identified, scientists’ vital tradition of exchanging valuable findings, and innovators’ chances to build on the creativity of their peers. Combining, appropriating and reinterpreting has long been accepted as legitimate practice in all the arts, from Shakespeare to Picasso — both of whom would be sued many times over if they lived and worked today.
The works in the Illegal Art show are canaries in the coal mine of our public culture. Should they expire under the pressures of copyright expansion or be given space to breathe?