<<Tim: the collective moral outrage could have been avoided save for the lack of courtesy, the blatant self-righteous, self-important, arrogant attitude exhibited in this case. if the artist simply apologized and came clean that she didn't know it wasn't a public domain image, i think the collective outrage wouldn't be so extreme. but to hide behind the flag of “conceptual art” basically says, “i can do whatever i want.”>>

So far as I know, the artist herself has not spoken publicly on this incident. How do you know she has not apologized? Or that the phrase “conceptual artist” was not used as a simple description of her work rather than the “arrogant justification” you are describing it as? Are you basing your opinion on a story told just from one point of view?

Stacia, I don't think the issue doesn't lie in the act of appropriation–although some people seem to try to mix that cynicism into their arguments here– or conceptual artists being lazy thieves. They could be very hard-working, intelligent, and high-minded (hence, conceptual), but that still makes them thieves if they don't respect someone else's lawful rights to carry out their appropriation. the collective moral outrage could have been avoided save for the lack of courtesy, the blatant self-righteous, self-important, arrogant attitude exhibited in this case. if the artist simply apologized and came clean that she didn't know it wasn't a public domain image, i think the collective outrage wouldn't be so extreme. but to hide behind the flag of “conceptual art” basically says, “i can do whatever i want because of my concept of free speech, even if it means stepping over someone else.”

what if they try to comment on societal mores and issues of justice and intentionally steal, pose nude in public, pee on passers-by, etc. to “make a point”? what if they take the issue further from these to something more extreme and sinister – say, violence, or murder? where should the moral line be drawn to excuse anything done for the sake of “conceptual art”?

But I think it is wrong to assume that conceptual artists who use appropriation to comment on the culture that surrounds them are lazy thieves who have nothing interesting to say.

With my post above, I was not stating that I thought she shouldn't try to get permission from Benson or pay him or give him credit. I was only trying to argue that the 2 pieces and the intentions behind them and the context in which they are shown is very different. And those factors do matter in a fair use defense. If O'Grady perceived of the Benson image of MJ as iconic (in the same way the Baudelaire portrait is), then it is more likely that she believed in good faith that her use was fair. Perhaps she still should have asked for permission. But “theft” is not the right word for what happened.

Fair Use is meant to strike a balance between the copyright owner's rights and the progress of arts and science. You may think her piece is not progress, but I disagree. I think she's asking a very important question about Modernism and cultural icons. I admit, I have not seen Benson's photograph in it's original context in Architectural Digest, but I would venture that it's probably not doing the same cultural work that O'Grady's piece is doing.

I'm not saying that either work is more important than the other, just that they have different cultural roles to play and therefore different markets. And that is what the doctrine of fair use is meant to preserve.

With all that said, I think appropriation artists absolutely should reconsider how and why they appropriate, and who the image source is and how it is being used. I argue for an ethics of appropriation which is lacking. For example, I think there is a major difference in appropriating from a source that is not widely known with no permission or attribution and appropriating from a mass-media corporate source like Disney. But I also think we shouldn't jump to the conclusion that appropriation artists are lazy assholes who don't know how to make their own work. It is just a really different kind of work.

“Appropriation art debunks modernist notions of artistic genius and originality and is more ambivalent and contradictory than modern art, simultaneously installing and subverting ideologies, “being both critical and complicit.”"

http://en.wikipedia.org/wiki/Postmodern_art#App…