Recently Jon Rafman removed several images from the Brand New Paint Job website after an artists' licensing organization based in Canada sent cease and desist letters. In an essay for his show at Fabio Paris Art Gallery, Domenico Quaranta, author of Media, New Media, Postmedia (excerpted on Rhizome) explains why the contested images are fair use:
What makes BNPJ [Brand New Paint Job] a radical project, despite its apparent accessibility, is – on one hand – its not immediate identification as a work of art and – on the other – its referencing of a conception of intellectual property that is not shared by current legislation.
As for the first point, without entering into the legal motivations behind the cease and desist letters, it is interesting to note that neither of them refer to the artistic nature of the project. The first makes a generic mention of “images”, and the second refers to an “online game”. It has to be said that if Rafman had been recognised as an artist, and his work as art, it is highly likely that it would have satisfied the criteria for fair use: the limited use of copyright material for specific purposes, as normally applies to artistic appropriations. So how was it possible that a collective set up to protect the interests of artists did not recognise, or refused to recognise, the artistic nature of a work?