Adam Del Gobbo’s recent post addressed some pertinent issues surrounding remix culture, which is outlined in Professor Lawrence Lessig’s 2008 book, Remix:  Making Art and Commerce Thrive in the Hybrid Economy.

Quoting musician Greg Gillis (a.k.a. “Girl Talk”), Lessig illuminates the concept as “[t]his appropriation time where any grade-school kid [who] has a copy of Photoshop [….] can download a picture of George Bush and manipulate his face how they [sic] want.” This redefinition of authorship in the digital age is echoed in the Ecce Homo v. Ecce Mono controversy too, because it questions whether copyright should be used to protect something that “defaces” or reduces the value of the original work, even if it falls within the four traditional areas of copyrightable works.

In early October, Vladimir Umanets, co-founder of the so-called art movement “Yellowism,” defaced a painting by the famed artist Mark Rothko at the Tate Modern gallery in London. In his own eyes, this was not an act of vandalism, but a redefinition of a piece of art as not-art, and therefore, as a piece of Yellowism. Whether or not I actually understand the nuances of Umanets’ manifesto, I do wonder about the implications his actions might have on the perception of what remix culture constitutes. To me, this art-(and now, not-art)-is-in-the-eye-of-the-beholder perspective is being used as a justification for vandalism here. Of course, I might only be saying this because the underlying work in question is a famous painting in its own right, and the Yellowist’s (Umanets refuses the labels “artist” or “vandal”) contribution to it is detrimental to its innate value, at least for me. Umanets would disagree, believing that he has added to the work’s value through its inclusion in the folds of Yellowism. His act asks whether the value of a derivative work is inherently linked to the effect of increasing or decreasing the original’s worth, or if it can have a separate and stand-alone value as a new work of art.

The parallel Ecce Homo v. Ecce Mono debate considers whether the value of a derivative work rests on public reaction, if its economic and artistic values are confused with each other, and if something can be “valuable vandalism.” For instance, Banksy, perhaps the most famous guerilla artist of our time, has often probed the murky philosophy behind the legal definition of “art,” by producing enduring stencilled works on state-owned property, which have had a lasting and positive effect on the public’s view of art, while creating problems for city officials.

What then, is the difference between Banksy, Cecilia Gimenez (the Ecce Mono creator) and Umanets? Is it the perceived value attached to the purpose that the work serves, perhaps making it worthy of being categorized as art? Or is it the real (monetary) value that the work is given, so that it is only considered art because it commands a price, which sends the (inaccurate) message that a work of art is only so if it is considered economically valuable? Or is it that the very act of vandalism is a blunt manifestation of the abstract concept of the “remix” in remix culture, where all derivative works are vandalised versions of the originals to some degree?

Copyright law does not take it upon itself to determine the quality of a literary, dramatic, musical or artistic work but only decides if it is copyrightable, based on some fairly narrow criteria. Derivative works tread the fine line between infringement and originality, arguably falling into both categories at times (thanks to the oft-contradictory perceptions of the originality requirement in copyright). For cases of vandalism, it may well be that the process of defacement creates a new work that is itself worthy of protection, independent of its perceived quality. For Banksy, this may be the recognition of his works as distinctive expressions of thought, but for Gimenez, it may be the distinctiveness attributed to the Ecce Mono by its circumstances, resulting fame, and the money it generates for the Sancti Spiritus foundation.

Umanets’ act is arguably neither of the above, even as it incorporates elements of both. The defaced painting could well be copyrightable; the issue with it, as it is may be with all “vandal works,” is whether it is ethically worthy of copyright protection, even if legally found to be so. This contemplation may be debatable in the application of copyright law, but is, I believe, one of the fundamental questions that remix culture-at-work raises.

Mekhala Chaubal is a JD Candidate at Osgoode Hall Law School and is currently enrolled in Osgoode’s Intellectual Property Law and Technology Intensive Program.  As part of the program requirements, students are asked to write a blog on a topic of their choice.

Posted in Copyright, Fair Dealing, Infringement, IP, IP Intensive, Moral Rights, Originality