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A growing number of artists are knowingly breaking the law, reports Helen Razer.
Art and the law have long been awkward in each other's company, with authorities making it their business to control material since Australia's first feature film, The Kelly Gang of 1906, became our first prohibited feature film.
No less sticky has been the relationship between culture and commerce. The work of popular music's most noteworthy players, from Elvis to Eminem, has been impounded from sale by responsible vendors.
Good old-fashioned prohibition continues to overwhelm public interest in anything from Andres Serrano's visual-art work Piss Christ to Larry Clark's film Ken Park.
The mechanisms of law and business are beginning to restrict access to art works, however, by different means. According to a growing number of "illegal artists", copyright infringement has become the moral affront of choice - and the cause of "cease and desist" letters and profitable copyright suits. Artists are now appearing in court to defend their entitlement to borrow or "footnote" the work of other artists.
British artist James Cauty this year stirred the Royal Mail's legal department into action with his Black Smoke, Stamps of Mass Destruction exhibition.
Featuring a silhouette of a postage-stamp-like Queen Elizabeth II wearing a gas mask, the series of prints motivated the British postal arm into using terms such as "copyright infringement" and "intellectual property". The original prints have been withdrawn from view.
Also in Britain, in 2002, musician Mike Batt found himself at the hub of a peculiar plagiarism action. It was alleged that his work A One Minute Silence was copied from a work by the deceased avant-garde composer John Cage. Cage's 1952 piece 4'33" was also entirely silent. The artist paid an undisclosed, six-figure sum to the John Cage Trust on the steps of the High Court for his theft of nothing.
Sean Baxter teaches critical theory and aesthetic philosophy with the Centre for Ideas at the Victorian College of the Arts. He is bemused by such judgements.
"Speaking generally," Baxter says "undergraduate courses dealing with issues of cultural and aesthetic production sit uncomfortably with the law as it is currently codified." The practice of openly borrowing elements from art works to create a new piece is commonly discussed and taught.
San Francisco-based Don Joyce is a founding member of frequently sued culture-jammers Negativland. He agrees that the concept of appropriation is full-grown, widely embraced and ought to be acknowledged in law.
Provision for fair use, or fair dealing, as it is known in Australian copyright law, needs to expand its definition.
"Everything is a remix," says Melbourne artist Susan King. Working within sound collage team Antediluvian Rocking Horse, it is her belief that appropriation informs the production of all art-works.
In 1997, King addressed the Australian Copyright Council symposium on the topic of fair dealing for copyrighted materials in art. Despite the efforts of artists such as King and Joyce to inject a little contemporary art theory into legal discussion, the law remains rigid and enthusiastically enforced.
Michael Speck, head of ARIA's music industry piracy investigation unit, takes the view that all works allude to past works.
"People do borrow, are inspired, do create pastiches," he says. However "copyright laws do exist" and it is his job to see that they are implemented on behalf of the Australian music industry.
Copyright infringement, he says, is a crime. Not just a matter to be settled out of court.
Clearance for sound artists working with elements of other work is conditional on approval of the publisher and record company that owns the copyright. If approved, conditions and licence fees may apply. This process, says King, is not always feasible: "The creative impetus is transient. If one must pause from the creative process to ask permission, or set up a contract, to continue, the integrity of the artistic vision has to be compromised."
"This (contemporary) art cannot thrive, cannot be supported, when stuck having to get permission and pay the price to simply reuse something found in one's own environment to make something new," concludes Joyce.
In the era of the remix, perhaps we need to become more even-handed about the balance between the cravings of commerce and the needs of art.
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