When Theft Serves Art

Andy Warhol was an artist. He was also a businessman. As he famously quipped, "Being good in business is the most fascinating kind of art." Warhol was great at both.

But Warhol's art was of a particular sort. Appropriationist is what some call it, as if there is art that doesn't draw from the culture around us. Remix might be a less charged moniker. Warhol created work that appropriated and remixed. Some of that culture was owned, meaning copyrighted or trademarked (think Campbell's soup cans). Some wasn't. But whether owned or not, the result was distinctly Warhol. He freely built on work that came before him.

When he died in 1987, his will called for setting up a foundation to manage his estate. From the beginning, that foundation faced an obvious question: What should it do when others used Warhol's images?

The artist didn't leave much of an answer­. He directed his executor to establish a "foundation for the advancement of the visual arts" and named three people to start the organization. But the Andy Warhol Foundation for the Visual Arts had to define its own mission and, more important, the values it would stand for. Would it exercise the control the law gives it over Warhol's art to maximize its income? Or would it exercise that control the way Warhol practiced his art?

I've grown so cynical about these copyright and culture debates that I wouldn't have thought an organization in the Warhol Foundation's position would even ask such questions. Of course it would exercise its right to maximize control. Rabid intellectual property protectionism - IP extremism - is so rampant that if the foundation demanded that future Warhols pay for permission to build on Warhol's art, most people wouldn't even notice the hypocrisy.

So I was surprised to hear the foundation's president, Joel Wachs, describe its values to an audience of New York City bar association members gathered to learn about fair use. The Warhol Foundation is "vigorous in enforcing our rights when it comes to people wanting to use Warhol's art for commercial purposes," Wachs said. But when it comes to artists and scholars, the rules are very different. "We permit artists to use and reference Warhol work without charge and without challenge." And "we let scholars use Warhol imagery for just a nominal fee to cover the cost of administering the rights." Wachs told me later, "We're Lessig when it comes to artists and scholars" and "Disney when it comes to commercial use."

To people who live outside the IP-extremist­ culture, this sounds quite sen­sible. But inside that culture, the foundation's values are incomprehensible. Not only are artists free to create and profit from images that build on Warhol's, but the foundation doesn't even ask to see how his work will be used. To condition the freedom of scholars or artists to use Warhol's pieces upon such a review would be censorship, Wachs explained. And the foundation has learned that there are people on both the right and the left who are keen to engage in just this sort of censorship.

Compare this with the practice of major film studios, as reported in J. D. Lasica's book Darknet: Hollywood's War Against the Digital Generation. Lasica asked to use small clips from famous films in some home movies he wanted to make - footage he promised would never be shown to anyone outside of his friends and family.

Universal Studios told Lasica he would be "obligated to pay $900 for each 15 seconds." When he asked for two 10-second clips from a Daffy Duck movie, Warner Bros. said, "We do not ... allow our material to be edited or altered in any way." And the Walt Disney Company told Lasica it "had to establish a general policy" of - you guessed it - saying no. In Disney's view, no one - not even artists, not even noncommercially - is free to build on Disney the way Walt Disney built on the Brothers Grimm.

There's not much hope that Congress will begin to think sensibly about the IP extremism its laws encourage. But we'd achieve a great deal if copyright holders - and those who challenge them - started speaking and acting with a Warhol sensibility.

As a former Los Angeles city council­man and mayoral candidate, Wachs knows well the arguments of the extremes­. He and his foundation do creators and creativity a great service by resisting the demands of the extremes and practicing the values by which Warhol lived.