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Re: [BKARTS] Copyright Law

It is now and always will be the prerogative of a lawyer to hide their
confusion behind an ad hominem defense. It is precisely the point I
make, clearly, that there is no legislatable difference, really, between
the collectively owned image of Mickey Mouse 'tm' and the copyright that
Disney holds on that public 'tm.' The confusion does not lie with the
artists who use images like Mickey, parodically, in their practices as
objects found in the common but with the legal necessity to 'make the
word flesh' and to simplify language to code as the law flies under the
banner of god and country. History as remembered has no statute of
limitations though and because any six year old can scratch out Mickey's
trademarked ears in moist ground we have to wonder about the status of a
very private image within a thoroughly public domain. Is it fair to have
to know the language of the logo to get on in the world but not be able
to use it as freely as I'm using this English here and now? Why should
the kind of use a six year old makes of a public image come under
scrutiny and if it doesn't when ought the use of Mickey become
problematic? (I'm aware of the danger of thinking this through in terms
of children. My point is that understanding a common language can not be
reduced solely to the means by which that language is conveyed. Memory
matters. Thinking that the distinction between tm and co. is useful
essentially thematizes the image.) Warhol's cans are an interesting case
in point here of course because they speak to the ambiguities we all
face in trying to register the distinction between 'use' and 'mention'
within a marketplace that has no stage for making meaningful
distinctions between art and commodity. It all sells. Warhol's use and
mention of the Campbell's tm hasn't really been decided which is one of
the reasons his paintings still resonate but I'm sure that one day you
too will be able to visit them at Campbell's headquarters as they fall
back into the archives of privacy.

Perhaps even more polemically and with all apologies to lawyers 'who
hath ears,'


-----Original Message-----
From: Book_Arts-L [mailto:BOOK_ARTS-L@xxxxxxxxxxxxxxxx] On Behalf Of
Jeffrey L. Loop
Sent: Monday, April 21, 2003 10:31 AM
To: BOOK_ARTS-L@xxxxxxxxxxxxxxxx
Subject: Copyright Law

There appears to be a great deal of confusion over just what copyright
law =
permits and prohibits, namely the concept of "fair use."  One poster =
expressed her concern that one might not be able to quote or footnote a
work.  Nothing could be further from the truth--as long as the quote
etc. =
is attributed, there is no prohibition under U.S. copright law.=20

As far as the comments that "powerful corporate lawyers" are expanding =
copyright protection too far; well that arguement may have some merit,
but =
not in the copyright context--it is in the patent arena that the
fiercest =
battles are being waged.  Those who wish their works to be available for
derivative works by others don't have to copyright what they do.
However, =
saying that one has some overarching creative claim to take whatever =
anyone else has created and use it for their own ends is absurd.  It is
like saying to the man who has just built his house with his own hands:
"I =
like your roof, I think I'll take it if you don't mind."  As The United
States Supreme Court put it in Mazer v. Stein, 347 U.S. 201, 219

"The economic philosopy behind the clause empowering Congress to grant =
patents and copyrights is the conviction that the encouragement of =
individual effort by personal gain is the best way to advance public =
welfare through the talents of authors  and inventors in "Science and =
useful Arts."  Sacrificial days devoted to such creative activities =
deserve  rewards commensurate with the services rendered." =20

Regarding Mr. Chapman's statements:=20

<<The reduction to absurdity that underlies the position that art is
created 'ex- nihlo' is exposed by our ability to know exactly what we
mean. The problem is that understanding a language, even an artistic
one, is insufficient. We must have negotiable means to use the language
through which understanding is transmitted or that language atrophies.
Because no one needs permission to understand the language they are
situated in it is permission itself that becomes, simply, that which
needs to be negotiated and 'grasped.' Knowing when we're infringing on
private languages and symbols is never easy; can I talk about Mickey
Mouse after my vacation is over- can I write about him in a hand made
book I intend to distribute as a gift to my family? The list
demonstrates to me that legislation currently is going entirely the
wrong way because most lawyers are deaf to the old distinction between
'mention' and 'use' preferring to register medium rather than message
and ownership over intent. Perhaps someone on the list can describe the
legal continuum of permissiveness towards corporately owned brands and
images as they relate to their use in the construction of hand made and
coterie published art objects?

I would love to know what the law says>>

I have two comments: First, perhaps you should find out "what the law =
says" before making derogatory comments about what lawyers are "deaf"
to.  =
Secondly, you are conflating trademark law (which protects indicia of a
company or product) and copyright, which protects the work of "authors".
You cannot copyright a trademark (however, Mickey Mouse is a character
and =
is thus copyrightable).  As Andy Warhol's ouvre famously demonstrates,
the =
appropration of trademarks into artwork does not implicate trademark law
because (one assumes) the art work is not being used to sell competing =
products.  Put another way, the Campbell's Soup painting did not violate
trademark law because it was not on a can of soup.  This is of course a
very simplified explanation, but it points out a common misconception.

For a brief synopsis of copyright, take a look at the Library of
Congress =
copyright site--it is in plain English and is quite good:

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