Wednesday, September 5, 2007

How low can Boston College go?

"Lavender Mist," a real Jackson Pollock - the kind you won't find in "Pollock Matters."

The Exhibitionist reports that despite an explicit order from the Pollock-Krasner Foundation that the "Pollock Matters" catalogue not include any images of actual Pollocks, the McMullen has gone ahead and included images anyway, citing "fair use" principles. This is rather a creative twist on "fair use" - or at least the McMullen seems to have thought so, as it held up release of the catalogue until the opening of the exhibit (if it had been released earlier, the Pollock-Krasner Foundation no doubt would have gotten a judge to block it).

I have to say this must be a new moral low for a local museum - well, certainly not as far as what goes on behind closed doors, but at least as far as the public record. Good thing there are all those priests over there for curator Ellen Landau to confess to.


  1. "Hippolocus begat me. I claim to be his son, and he sent me to Troy with strict instructions: EVER TO EXCEL, to do better than others, and to bring glory to your forebears, who indeed were very great ... This is my ancestry; this is the blood I am proud to inherit."

    Glaucus to Diomedes in Homer's Iliad

    The source of the motto for my alma mater. :)

  2. Funny - when I think of BC, I usually do think of Trojans! ;-)

  3. I've been thinking about writing about the same issue on my blog - not just because of BC's rude actions, but also because of how the fair use law is widely applied on the web.

    But back to BC ... I don’t know the caselaw, and I ain’t no lawman, but a straight reading of the law suggests Boston College may have a point.

    Section 107, “Limitations on Exclusive Rights: Fair Use,” says the reproduction of copyrighted work for “criticism, comment, news reporting, teaching … scholarship, or research, is not an infringement of copyright.” In particular, the law seems to give special allowance for “nonprofit educational purposes.”

    It depends on how much of the copyrighted work you reproduce (BC reproduced whole works, though at a mighty small fraction of their actual size), and “The effect of the use upon the potential market for or value of the copyrighted work.”

    Boston College (and, say, art review blogs) seem to meet a lot of these qualifications for fair use. And on the Web, where fair use is a major question, this is an issue with broad resonance. Though as a content maker, it always makes me a bit queasy when people run around using copyrighted material without permission from the copyright holder.

    Which brings me to a question - and I'm not trying to be a jerk - does The Hub Review have a policy regarding reproducing images without getting permission?

  4. "This is rather a creative twist on fair use"

    How so?

  5. To Greg Cook and "anonymous" -

    No doubt the BC lawyers have constructed an argument to justify their actions - which might fly under a superficial, dictionary-definition reading of the statute in question. Nevertheless, it's obvious - and I mean really obvious - that the intention of the use of the Pollock images is to suggest (insinuate is probably the better word) that the Matter paintings are genuine Pollocks (or that at least each of us should "decide for ourselves!"). Even this dubious situation might pass "fair use" muster save for the fact that what empirical evidence we have on the Matter paintings indicates - indeed, all but proves - that most of them are not Pollocks. This potentially renders the McMullen's actions a form of implicit fraud. And I don't see "fraud" listed in the statute under the conditions of fair use.

    And yes, the Hub Review does have a policy regarding reproducing images without getting permission - I reproduce images without permission at will, as the Hub Review clearly fits snugly within the parameters of the "fair use" doctrine.