 I think we're starting. Are we good? Hey everybody, welcome to my illegal minds and or the gibberish that rattles around. My name's Michael Branson-Smith. I'm here to talk about what I have stolen, is a quote from someone we're about to meet, the illegal mind of the artist. And I'm talking about it in the context of art, remix, and copyright, or the above titling AI gibberish above. That's how it interpreted the illegal mind of the artist as a title. Mentioned three times and it still got it like that. So this is Jerry Saltz. This is a very insider baseball human being if you're in the art world. And I know of him and the reason it came up, and it is his quote, in the 90s I was in art school at the School of the Museum of Fine Arts in Boston and when Jerry Saltz was coming, it was like, Jerry Saltz is coming, Jerry Saltz is coming. I was like, who the hell is Jerry Saltz? And he showed up and it was very compelling to me because I was someone who was an appropriation artist. I was taking imagery from old textbooks of artifacts of safety, which I was very interested at the time in iconography of Christianity and of all things my lifeguard safety handbook and taking their bathing suits off and making them look like they were naked instead of demonstrating lifeguarding positions. And he used this phrase, the illegal mind of the artist. And I was like, yes. But Jerry Saltz went on to, actually this man is a Pulitzer Prize winning critic. And he is 71 now and he didn't become a critic until he was 40. He actually was a failed artist. He was just kind of lost his cool about it. He was worried about him. Posture came from Chicago. He was in the art scene there. He got an NEH grant, moved to New York, and kind of freaked out and went on to drive trucks for three years, four years, five years. And while he was a truck driver, he was like, I got to get out of this terrible job and decided it's like I can be an art critic. I can write like those art form types. That's cool. And he did. And he was parroting their style for quite some time until he found himself, which was I want to be. I would watch Sister Wendy. If anybody knows art criticism, this was a nun who used to talk about Renaissance art primarily. But it was very plain language and very just descriptive of the content and the framework in which it came from. And he was like, I want to be that for modern art. And he did it. And he was really successful at it. But he also became really good at Twitter. And this is kind of a framing point of view. So we're going to see what this is in response to in a second. So he's yelling at artists. Artists use materials. Images are materials. I'm adding the emphasis because that's what it reads like. Every photographer crying when prints. And we're going to learn who prints is not the artist formerly known as prints, but he comes up to. Totally transforms. What are their idiot images as fakes? All the crap, fake artists who cry, whine, and sue other artists have no idea what art is. That copyright is dead. And will die never knowing art. And he goes on and on this way. He's like, you can use my stuff. Steal it. You can make money off of it. All bets are off. Sounds like crazy. This, again, Pulitzer Prize Women art critic. This is in 2017. And what he was responding to was this. So Richard Prince is a very, very, very famous appropriation artist. And he's been doing this for decades. He took a photograph of a marble ad magazine print. Famous like the horses and the guy with the cowboy hat. And he sold it for millions of dollars. He printed it out. And he's done traditional painting in real. But this is what he's very famous for. And this was his most recent shenanigans of commenting. You can see them right here. Commenting, Richard Prince 64, Canal, Zion, Da, Lama Jam. Ooh, Cloud. Partly sunny? Sunny. I don't know what he's saying. And he would make these comments. He would literally screenshot it, send it to his art generator dude, or a person. I don't know who it is. Make a print out. And he was selling these. This is in the famous Gagosian Gallery. If you're in the inside of a world, they're the Microsoft of gallery sales. Or Google, whoever you want to call them. And was selling these for tens of thousands apiece. And he was felt fully licensed to do this because of this particular situation. And so in 2000, a French photographer named Patrick Carew published Yes, Rasta, a book of dramatic black and white photographs of Rastafarians against a lush Jamaican landscape. And eight years later, Richard Prince debuts the Canal Zone series. And so Carew, Richard Prince. And there are 30 pieces, a lot more. There are a lot more that were more collage-oriented for the most part. And Carew sues him. This goes to the New York court. So you have to keep track of this. The New York court is the second circuit. The LA court is the ninth circuit. Kind of keep that in mind. But it's the West Coast, East Coast divide. This is going to be important later on. And basically, the initial judge says total copyright infringement. Not only that, this stuff needs to be destroyed. Like literally, the judge says, destroy that stuff. Second court says, whoa, whoa, whoa, pump the brakes, pump the brakes. In fact, that was just a horrible idea to say that, like to destroy the work. And they found fair use. And this is the banana part. 30 of the 25 are clearly fair use, but five are not clear. So they send it back down to the first court. And this is one of the ones that was, I think, not clear. All right? All right? So the second circuit decided the case would hinge on whether a reasonable observer would find Prince's work to have been transformative. And transformative is this very important word here as part of the fair use argument of copyright. Oh, my gosh, I have messages. Hi, B. Let me see if I can mute that. Where's the cursor? Oh, well, we can all live with my daughter, right? Jumping here? Oh, it didn't. That's right, it's second. Maybe I'll just, oh, I can't mute anyway. All right, let's not worry about it. And so in particular, if the quoted matter, and this is from the second circuit, if the quoted matter is used as raw material, right? And so that's the quote from, we heard Jerry Salt saying, raw material, right? Transformed in creation of new information, new aesthetics, new insights, and understandings, this is the very type of activity that fair use doctrine intends to protect for the enrichment of society. So raw material, society needs that appropriation and remix to happen. But these two photographers sued. Now, we're back in 2017. So we went backwards, so just to keep a frame. This was way back in 2013, the decision, the initial show was like 2009, decision 2013. We're back now in 2017. All right, actually now. This is pretty much, this is an ongoing case. And what's interesting is, so these two photographers, Donald Graham, who is the photographer of the Rastafarian smoking a joint, and Eric McNalt, who is the photographer. And that's actually Kim Gordon, who's Sonic Youth. All right, so this is, he's using famous people often in his imagery, but this one was interesting. So, Prince immediately says, I need a summary judgment, this must be fair use. And that judge is like, wait a minute here. So, you know, this is, we're in New York still, all right, you know, elucid, this is the judge's description. It's like elucidating the boundaries between technology and art blend. No, that's not it. This is it. Prince did not use the plaintiff's photographs as raw material to create a collage or nor did he attempt to obscure the images, right? And so he's talking about the reason observers coming up again. It's like, this one is like, not fair use, not sure yet. And so this one is now ongoing. So, he tried to get it and it's a whole process. Like you can just say, hey, let's get this tossed, right? Let's immediately get this tossed. So, another Prince. This one you may have heard of actually, because this was the Supreme Court got involved, right? So, the Supreme Court just cited that the use of the licensing of this image on the Memorial publication in Condé Nast, because instead of, was not fair use. And this is important because of a couple things. So, the original photographer, gosh, I apologize, what's her name? I can't read. Oh wait, it's there. Yeah, Lynn Goldsmith, sorry, I apologize. So, Lynn's Goldsmith, so this dates back to actually this. So, Lynn's Goldsmith created this photograph on the left and way back in 1981, it was licensed for 1984. This is like Prince, like in the beginnings, like he's becoming a thing. So in 1984, Vanity Fair licenses the image from Lynn's Goldsmith to give to Andy Warhol to create this portrait. And not only that, just series of portraits, which he didn't agree to, but this entire series of portraits, all right? And so that was the original usage, okay? We go back to basically, this is 2017 when Prince dies, he accidentally overdoses. Condé Nast doesn't go back to Lee Goldsmith, they go back directly to Andy Warhol's foundation and say, hey, we wanna use one of those, a different one, a different one, right? It's not the same one, no purple face, just an orange face. That's important. And so this happens and what's interesting is they knew it was gonna be a problem and the Warhol foundation proactively sues Lynn Goldsmith and say, we know this is fair use, don't you stop us. But didn't go how imagined. This goes all the way up to the Supreme Court. This is Sotomayor's analysis. For Sotomayor, the only relevant feature was Warhol's use is that the commercial licensing of the image. Prince of Warhol made the Goldsmiths image which have been displayed widely in museums since their creation in the 90s and the opinion offers little or no reason that those aren't unfair. So basically those artworks that are hanging in museums, they're cool. What was interesting about this is it was a very narrow description. Because they tried to use it basically as a substitute in the commercial market, this is part of the fair use law. I'm not gonna go through those. There's like the forced parts of fair use to look through. I'm not a lawyer. Ask me anything, I'm not a lawyer. But the idea was she was most interested in it. It's like, hey, it was a swap. We have the history of this was used for a very specific commercial use. And this is gonna come up again as what might be happening in the future in the context of social media. And we're about to jump into social media and where we are. So this is like this kind of history lesson through the arts. Because we have a different prince. Another prince, let me see. Where's the cursor? Here it is. Oh, it's on here. Let's see if we can get the, here we go. How do we turn the volume up? There it is. Okay, so Stephanie Lenz, very important character in this story. She takes a video of her child in the kitchen as we just saw dancing the list go crazy, you know? Universal music, all right? Sue's her, all right? And no, doesn't sue her. Does it take down? Just a classic YouTube take down. We're all used to this. And under the DMCA, and so the DMCA is now like that, 1998 law is now getting involved, all right? And she sues her for doing what's, the party, UMC, knowingly, materially, misrepresents a take down request as liable and then can be liable for damages if this is the case. Like, she's saying like, this is ridiculous. This is total fair use. This is, you know, this is malicious. And so we're like, yeah, go for it, Lenz. And so, let's see if we got to get to, there we go. So there's two things that come out of this that are really, really important. This judge for the first time, and this is the Ninth Circuit, so now we're on the West Coast. This is the West Coast already, all right? The Ninth Circuit judge says, hey, because fair use constituted, because fair use, wait, wait, wait, wait, wait. Oh, this judge held that because fair use constituted a use authorized by law and this is because of the DMCA really says this, like the idea that fair use is authorized by law because historically fair use was a defense argument, right? Like the idea is I do something, I use stuff materials, which I've done a lot and you're gonna see some funny examples, hopefully you enjoy them. And they say like, that's my copyright, you can't do that. Fair use, woohoo, no, no, you can't do that. So it's supposed to be a defense. But this judge says, no, no, no, you have to assume there might be fair use. So it's, and that was a steer, but the idea of what the other thing he said, this is the real problem. The rights holder, they only need subjectively review the material to see if it's infringing rather than objectively, meaning like they just get to say it's like, it's probably not fair use. And so I'm gonna say everything's not fair use. They don't have to really go through the four steps. They don't have to objectively look at those four steps. They don't, it's like, nah, just if you think it's probably not fair use, you're cool. And so that's the real sticking point that we're now living with. So she gets away with it, but. But it screws all of us, right? And so this is something I've dealt with. This is one of the piece that I got copyrighted, so people that have seen some things that I do, it's like I do lots of remakes. This is a mashup of the moment I lost control. This is every Bruce Banner, you know, eyeballs moment. Like that was the best part of Bruce Banner. He would be like being like physically abused or tortured or just like somehow like getting so angry, he'd suddenly like cow and he'd go, you know, and he'd have like the contact lenses on, right? And so, and I'm gonna show you a portion of it. And there's like literally like 40 of them, it's awesome, right? And so it was a super cut of sorts, right? And it existed for a long time and it had 90,000 views. So it actually existed. And this is the one of the things about Content ID is it's not just when you upload content, it's forever checking that database of my stuff is forever being updated and changed, right? And so this is what it is now. I got a copyright strike, you know, because Jim and I actually asked him about this, this idea. It's like, is it worth it? Because it goes through a bunch of layers. So you get to like, I submitted my dispute and they're like, nah. And then you're like, do you wanna, are you sure? And this is the thing that they talk about. Are you sure you wanna dispute? Because now an official DMCA takedown notices. The first stuff is not legal. It's all Content ID. Now it's a real takedown. Now you're working with the law. And it is, they treat it, it is a legal defense. The only thing, and this is what, you know, you said fair use can only be decided on a case by case basis. And it is your responsibility to defend yourself in a court of law. It's a case by case basis, right? So the sad thing is no one gets to see any of this, right? We'll jump ahead because it kind of gets better. All right, so we'll stop. But it's kind of funny. So this isn't the only one. That's the only one where I just like, lost, lost. That's not the only option of the copyright holder. They can say, take it down, take it down, take it down. They can have, they have two other options, all right? Another option they can choose and say, yeah, leave it up. I just wanna see what kind of views it gets. I get to see all the data, right? That's in the back end. That could be cool for me to know how to make sales or just understand is there's still a market for this intellectual piece of property. But the other one, which I don't, it does, I don't have to interact with, I get all of the ads, right? I get all the sales of ads against this, right? And so here are two, almost the same, one's named Batman and Louise. The other one, if I could just reach my utility belt, these are both remixes. I'm gonna play the one on the right. The one on the left was more of a straight use of the video from the Super Friends episode. The right one involved me doing a much more editing of the, to make sure the lips matched. And you'll see what I mean when you watch it. So, interesting enough, that one did not get any copyright claims at all. The one on the left where I done and done, and the face is, cause, you know, Robin just goes, blah, blah, blah, blah, blah, blah, blah, blah. Batman's like, uh-huh. Blah, blah, blah, blah, blah, blah, blah, blah. Okay. So you just see Robin yammering along, but the voice doesn't match. So I re-edited it. But this one got a copyright strike. I mean, it was like, okay. Right? And this is, this theme continues. Whoops. This is like forwarding. Go away. Oh God. All right, here we go. This is another one. I'm gonna skip over this for time. But this was, this is Cops and Cowell. This is a bunch of like, you know, this is the audio of Simon Cowell doing one of his classic take-tounds on America Idol, someone that never should have done it. Oh wait, there we go. But, so there are professional, you know, content creators out there, right? And the EFF did this wonderful white paper, right, on what it's like to deal with Content ID and interview three content creators who make their livings off of, you know, producing content for YouTube. And they talked about it, it's like, by creating a private system that dead ends in the DMCA if disputed YouTube has leveraged fear and it's true of the law to discourage video creators from challenging Content ID. You know, and it's like YouTube sells Content ID to the entertainment industry as a way of making money off of others' transformative works and that YouTube discourages disputes so it can keep paying large rights holders. This is a quote from one of the creators. And, you know, Ellis is, her name is Lindsay Ellis and she's a video SS that works in the New York Times and, you know, she has like an author of books and has a million, you know, YouTube viewers. And her producer was describing, or Ellis, I don't know exactly, she had to become a fair use on expert because it was never about fair use and it's about beating Content ID. So you had creators that would constantly adjust and still do edit their videos to try to pass through Content ID because they're so terrified of the three copyright strikes, all your shit's deleted by like Jim Croopton. He let it all die. And so this is what's going on, you know, but maybe there's hope, right? There's an American, and I don't know if this is a good thing and so this is the one of the same. So there's an American composer or I don't know. No, she's a composer, Maria Schneider is presently suing YouTube because of an axle, gosh, we have three minutes, I'm screwed. Lack of access to YouTube, Content ID. So there's only about a few dozen people that are, 9,000 people are allowed access to YouTube, Content ID. And we're gonna have to skip the game of fair use, which is fun. Well, we can play the game of fair use. We could end on talking about the game of fair use. Do you wanna play the game of fair use? We'll do this quickly. We'll go through. All right, ready? Fair use or not? Tattoo artist uses a photograph as a reference. Fair use or not? Fair use or mixed? Yes, because of the name. Not fair use. We have, this isn't still ongoing in the courts, but the initial decision is not fair use. So this man's body is in jeopardy. We'll skip that one. Social media post, basically reposted, so article from the New York Times, photographer did this photo of this man for the New York Post. Person does a comment, a story about the backlash, this nice guy got for his opinions and reposted it. Fair use or not of making a clip of this headline and photo. It was, that was fair use, good job. Not fair use. This one's good. Famous model has a paparazzi take her photo. It's on the paparazzi social media. She, or no, on an article somewhere, whatever, it doesn't matter. She reposts it for 24 hours, so it auto-deletes and puts mood forever. Fair use or not? No, it turned out to be, this one's crazy. What's this guy's name? Randy Orton has these tattoos on his arms. Big-time tattoo artist licenses images for a video game company. Tattoo artist sues because he's not getting paid for their original artwork. Fair use or not? It's not, that's crazy. But the idea is like, but it's his body, right? Is there an implicit license when someone draws on you that it's now like you can present it any context you want? Well, I'm just saying, this one's not, and it's ongoing. This one's an open conversation. This one's my favorite. Artist of no, completely unknown makes, Joe Munford in 2000 makes banana and orange, registers it with a copyright artist, but Maurizio Catalan introduces his artwork in the comedian, Fair Use or Not? Right now, no, but it's crazy. But this is the one that's important, okay? So this is back to the 9th and 2nd circuit courts. So this is the one where, this is I think where we're kind of headed. Newsweek embeds a photo of someone, embeds a social media post, technically, just embedding a social media post. What's wrong with that? I'm a professional photographer and I had this image and you could have called me and paid me some money. No, no, no, the server law, which we're kind of not getting to really quickly because we're running out of time. But this is the server law when internet like adult entertainment company sued Google when they were making all these thumbnails and Google images when it first showed up, right? And they said, wait, that's my stuff, that you can't do that. The thumbnail, so there are two infringings, the thumbnails and then the embedding of the original because that's technically the original hotlink, right? That's a hotlink is what we call it or an embed. And they said this was Fair Use and this became the server law and this is the server laws from the West Coast. This is the West Coast, right? But back here, this is the East Coast. The East Coast is starting to push back against the server law, right? And let's get to their quote right here. Jump to it. This is the East Coast. Rakov said the server rule is contrary to the text and legislative history of the Copyright Act. It defines to display as to show a copy of the work, not to make and then show a copy of the copyrighted work. It cannot be that the Copyright Act grants authors an exclusive right to display their work publicly only if that is public and not online. So this is kind of similar, I think in my mind to what we saw with Richard Prince in this, it's this use and it's very specific use. And so, I mean, we're jumping ahead because we're running out of town but this is the intellectual property, I think we're out of time. It's lunch now but then we're out of time. If you wanna keep going, we can keep going. So this is where I think it's going is this more specific narrow, because that's what Sotomayor was going after. It's like, what's the usage of the Fair Use? And to me, that actually might be more just, right? As we're focusing on like, hey man, this was licensed, Goldsmith had this right to this image in this really narrow specific context and she still should, right? Because it's the exact same context. And so you might say like, this is the exact same, where is it, this one, context. Like you're using an image that you otherwise wouldn't have and would pay a photographer to use and that happened here with someone, this was a starving polar bear video that was used by all these sites that were suddenly writing articles about global warming, right? And so with this very specific use and so what is that gonna cause us to have happen? I mean, this is another on where it's like, it's commentary, so it's fine. We're starting Instagram, it's like, ooh, we're gonna have subscription. So it might be on the companies themselves are gonna start doing stuff, like where they're gonna say like, it's start gonna be carve outs and paying, that's a guess, but the IP apocalypse and IP AD is what the mid-journey created, which I think is awesome. IP post, Ando Domino IP, right? Whoa. Right, and that was using the intellectual property of populace. So this is a computer scientist. So there's two fronts to the IP apocalypse, if I would call it. One is on the side of, is the image itself copy-writeable? And the other side of the argument is, is the scraping of the data, all of the images fair use. So those are the two intellectual property right issues. So this man tried to get this image that was generated by his personally built engine. He's not using mid-journey. It's like, I'm a computer scientist. I know how this stuff works. Never mind the scraping. I don't know what image training data he used. And the copyright, US Copyright Office ruled, it's like, hey, it was created by an on autonomous machines. We cannot register this work because it lacks human authorship, we're gonna hear that a lot, human authorship. What does that mean, right? And so this woman, she created a comic book. It's her writing. It's her framing of all these images. She sent it to the USOC. They said, cool, here's a copyright. And then it came out like, wait, all those images are AI generated. They rescinded the copyright and said, nope, you're writing in the arrangement. That's copyrighted. The images, no. Crazy, right? And so right now, that was the quote directly to her, but this is that the US Copyright Office just released a guidance document of how to work with generative AI. And it says, based on the office's understanding of generative AI, talk to this clearly, users do not exercise ultimate creative control. However, such systems interpret prompts and generate material. Instead, these prompts functions more like instructions to a commissioned artist. And wait, wait, so who's the commissioned artist in this case? And it's their rights? No, there's no, the commissioned artist is like, do you remember, and it mentions it, oh, it's not there. You remember the monkey selfie, right? The animal took the photo, so there's no copyright, right? So they're saying majority is basically a monkey, right? And so this is the other side that's pushing back. So this is the other side of the argument. So this is Getty Images, who's now, this is part of their legal case. This is in the midst of all this. And it has not been dismissed so far. This is going to proceed. Thousands, nine million images they describe, like there's nine million images that were scraped to use in training data, but what they have to really concern themselves with is Google and the Author's Guild in 2013 where they ruled that, like, scanning a billion books, that's cool, it's transformative, man. They made a search tool out of it, right? So that's probably where that one's gonna rub around the most, but we'll see. And finally, that was a comment, let's not do that one. Back to Jerry Saltz and his kind of lawless thinking. And in looking him up again, I ran across this wonderful writer, Haley Naiman, from meme to culture, music family, what is okay to steal? And she had this about his rant, it's like, I can't stop thinking about one word that's missing from his rant, power. And this is something that could be a whole talk and should be a whole talk unto itself, is this idea of, you know, sure this freewheeling approach seems cool, but what does it mean to say like, yeah, like everything's free, let's tuck it out. That got us into so much trouble, you know, like 10 years ago, it's like free internet, it's all free, that thinking, I'll stop. Anyway, but thank you very much. Thank you. Thank you.