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Fairness

A new piece at the NY Times covering the Richard Prince copyright case, in which Prince reworked photographs from a printed book and then sold the works of art for a great deal of money. It’s a high profile version of the tug-of-war going on everyday surrounding the issue of “fair use,” that is, individuals’ ability to use an already existing work of art for their own purposes.

Fair use largely depends on the idea of “value” added to the original, an obvious sticky point for thinking about “art” in this context. If the appropriated work is significantly new, “new enough” to add “value” to the original, then its ok. It’s a fabulously ambiguous distinction, one ripe for creating an entire industry of adjudication. As always, the lawyers come out ahead of everyone else.

As I write in my new book, however, while we spend a lot of time judging fair use in the sense of what is ok for me to take from you, we spend very little time debating a notion of fairness towards another person’s work in the sense of what I can do to be fair to what you have done. We have Critics and Mashups, people who dissect something or smash things together — both rather antagonistic ways of relating to someone else’s creativity. But we have little discussion of how to be custodians of other people’s works, how to handle them with care.

You might say that I’m just being a sop for the music industry (and now film, television and no doubt publishing). When everything is so commercialized, mashing just feels right. And as David Shields has written, with so much cultural stuff floating around out there, beginning with someone’s else’s work also feels appropriate.

But responding custodially to someone else’s work isn’t about being ironic, the meta-emotion of modern life. Nor is it about adding “value” to an existing work or even being a consumer who has paid for the work’s value. It is about establishing a long-term relationship by responding to and caring for a work that matters to you. It is about taking a work out of this commercial give and take. After all, the mashup is usually just another way of trying to sell something (again). The real goal ought to be to figure out a way out of this cycle of buying and selling into something more deeply creative and more deeply social.