How do we understand a work of art? For copyright professionals, the most salient questions are typically about creation, originality, ownership, authorship, and enforcement. These categories have largely remained immutable over the centuries, even as the manner of their legal application may have changed in response to technological developments. More recently, fields of thought external to copyright law itself have also been brought to bear, most notably the law and economics approach, with its focus on incentivizing creation and balancing the interests of the creator with those of the user.
Against this background, consider the following, which appeared in the 23 May 2018 issue of The New Yorker magazine:
“The instantly recognizable art of Takashi Murakami (bold in the original), Japan's answer to Andy Warhol, has graced handbags, phone cases, skateboards, and album covers—in Moscow, it was recently even charbroiled onto a hamburger. Now his imagery is back in its natural habitat, hanging on its walls at the Perrotin gallery. There are plenty of his signature otaku flowers, but also forays into art history, including homages to the British master of angst Francis Bacon and the Edo-period Japanese painter Soga Shohaku.”
From the traditional IP perspective, various questions can be asked, starting with how the design/copyright interface applies to the protection of the art on functional items. The fleeting permanence of the artwork as embedded within a Russian hamburger raises a further issue about the standard of fixation under the law in some jurisdictions. Further, what exactly is meant by paying “homage” to the style of other artists?
But what about other possible intellectual sources that might enhance our understanding? Consider the pre-World War II legacy of the Frankfurt School, particularly as expressed in the thinking of Walter Benjamin. Long lodged (perhaps due its quirky Marxist antecedents), in departments of media, communications, cultural studies and aesthetics, maybe it is time that this intellectual tradition be brought more directly to issues that engage the copyright community.
Let us focus on the comment that, in exhibiting the artwork in the museum, it “is back in its natural habitat”. What is so “natural” about an exhibition? Enter Walter Benjamin and his seminal 1935 essay (still a staple of analysis and reflection), entitled in English translation—“The Work of Art in the Age of Mechanical Reproduction”. What preoccupied Benjamin was how to understand the reproduction of works of art. While acknowledging that manual reproduction extends back thousands of years, the development of modern means of mechanical reproduction was for him a cultural game-changer.
Central to his understanding of reproduction is the notion of the “aura” of a work, which he explained as “its presence in time and place, the unique existence at the place where it happens to be” (p. 3). For Benjamin, the aura of a work of art in its primal sense was integrated within the practice of ritual, such as a fresco on the wall of a medieval church. The later notion of “pure art” was a doomed attempt to maintain a sense of secularized ritual and authenticity for the work in the form of the cult of beauty.
As Benjamin observed, “[t]he uniqueness of a work of art is inseparable from it being imbedded in the fabric of tradition” (p. 6). This tradition also entails physical changes and changes in ownership to the work. As such, mechanical reproduction can never be authentic, nor can a copy ever be perfect, because it is detached from its aura.
Circling back to Murakami, what about the display of the works of art at an exhibition? It seems that the exhibition ultimately misses the mark because it replaces the centrality of the piece of art within the context of its unique aura with something that is simply “on view” (p. 7), which is “to be sent here and there” (p. 7). In Benjamin’s words, “… by the absolute emphasis on the exhibition value the work of art becomes a creation with entirely new functions ….” (p. 7)
One might argue that, in modern times, the display of a work at an exhibition, private or public, is as “natural” as it gets from the vantage of the aura. But what about the use of the artwork on various items of commerce? John Berger, in his book, Ways of Seeing, relying on Benjamin, famously wrote as follows: “For the first time ever, images of art have become ephemeral, ubiquitous, insubstantial, available, valueless, free (p. 32).” Anyone for Murakami on a hamburger?