K. E. Gover

If you are into philosophy and art, this might be of interest. Gover spends a lot of time arguing for a particular definition of what it means to be the artwork of an artist for purposes of attribution (and avoiding attribution)—the artist must both conclude that it is her work, and also agree that it is finished; these decisions often happen at the same time but can be distinct. An abandoned canvas in an artist’s studio is not “hers” in the same sense as one she signs and sends out into the world, though it’s “hers” enough that she should be able to decide whether it’s “her” “work of art.” We value artworks not for their instrumental uses, like a smartphone, but for their expression of an artist’s conception, which is why it matters whether the artist agrees that it’s her work.

Works in progress when an artist dies, or works in progress when a relationship between artist and sponsor fall apart, then create ethical problems: are they really works of that artist? A well-known dispute over an artist, Büchel, and Mass MoCA, which eventually refused to continue buying stuff for him for his ever-increasing demands for an installation, provides an example; among other things, Gover argues, museums and other institutions that collect supposedly avant-garde art end up reinstantiating the idea of the unique, romantic author because they treat the individual as supreme, in contradiction to the theory of art that both sides purport to espouse. Gover argues that when you sell a work—or make a work with someone else’s money, even—that should limit the rights you have to control the disposition of the work, even if you are later embarrassed by it or think it no longer reflects your artistic intentions. Relatedly, Gover argues that there are limits on what an artist can declare to be part of the “work,” which is relevant when artists argue that their art is site-specific and can’t be moved or removed without violating their moral rights. Further, we can question artists’ statements about their intent and meaning without violating their rights; in some cases, “artists’ claims about the boundaries of their artworks can be rejected not only because they conflict with the property rights of others, but because their assertions can be unconvincing in light of the other properties of the work.”

When it comes to conflicts between copyright law and appropriation art, Gover argues that considering appropriation presumptively derivative and unfair is “more in accord with appropriation art’s theoretical purpose to undermine originality as an ideal of authorship,” which I think undercounts the idea of “transformative” meaning for purposes of copyright law, but is certainly internally consistent. Appropriation art, Gover argues, whittles down the moment of creation to one where creativity is exercised is selecting what to copy, and authorship is asserted as a matter of claiming the work as one’s own. This “serves as a bold assertion of artistic authority, rather than simply a renunciation of it. The appropriation artist seems to abjure the standard of originality for artworks but is in fact unable to escape being so …. For which is more mysterious and god-like: authorship that results from eighteen months of labor on an oversized canvas, or authorship that consists of selecting an already-existing work so as to claim it as one’s own new and different work of art?” As Gover points out, you can’t understand a work of appropriation art “correctly” without knowing that it’s appropriative, and it is “strange that appropriation art’s defenders consistently articulate its significance as a means of rejecting the concept of absolute originality, and yet they nevertheless want to defend its importance as a new and original form of art-making that results in new and different works of art.”

I agree that “derivative” shouldn’t be a term of opprobrium (in copyright law, it’s supposed to be a neutral descriptor of, e.g., the movie version of a book), but I don’t think it then follows that all derivative works are nontransformative for copyright purposes, or vice versa. In fact, some appropriation art counts as a “reproduction” and not a “derivative work” for purposes of copyright law; others—readymades—aren’t even reproductions. Gover isn’t a copyright lawyer, so it’s more forgivable that the argument here collapses differences in form and differences in meaning into the same thing, when sometimes it matters for copyright law which you have created and why. From a legal perspective, still, even if Gover is right in diagnosing what appropriation artists are doing, it doesn’t follow that they should need copyright owners’ permission to make their art (Gover suggests that this is no different as needing to buy the physical components like paint, software, and canvas to create).… (lisätietoja)