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How Warhol Turned the Supreme Court Justices Into Art CriticS




Warhols face seen on Campbells tomato soup can.

“Mirror, mirror, on the wall, what is the fairest use of all?” So one imagines the murmuring of Supreme Court Justices, after reading the opposing opinions from Justices Sonia Sotomayor and Elena Kagan in last week’s decision on a vexed question of copyright and its discontents. The case, Andy Warhol Foundation for the Visual Arts, Inc. v. Goldsmith et al., turned on the issue of mirroring in art—of more or less exact or distorted copying or “appropriation”—and of what is and what is not fair use when we look at art within that mirror.

The case, somewhat tedious to summarize in all its niceties, involves a 1981 photograph of the artist then still known as Prince taken by the photographer Lynn Goldsmith, which in 1984, during the Pop artist’s lifetime, was rather mechanically “Warholized,” with what basically amounted to eyeliner and a splash of paint, to illustrate a Vanity Fair article—and another of Warhol’s works based on the same photograph, which was licensed by his foundation, many posthumous years later, to Condé Nast (the parent company of Vanity Fair and The New Yorker), for use in a special-edition magazine published after Prince’s death. (Vanity Fair originally gave Goldsmith an artist-reference fee and a credit; on the second occasion, she was neither paid nor credited.) Goldsmith seems not to have known that Warhol had produced a series of works based on her own, aside from the agreed-upon 1984 Vanity Fair illustration. Did the Warhol redo of the Goldsmith portrait constitute fair use of an original image, or was it an unfair expropriation of someone else’s creativity for commercial ends? Justice Sotomayor, writing for the 7–2 majority, said, with surprising ferocity, that it was not fair use but copyright infringement, and so it needed to be paid for—exactly how much, and how the fee was to be assessed, remains to be decided.

Justice Kagan, speaking for a tenaciously aesthetic minority made up of her and Chief Justice John Roberts, awakening from the dogmatic slumbers in which he has dozed while his colleagues to the right strip away one minimal civil-rights protection after another, insisted that it was fair use—part of a fertile field of recycled images that make art art. Kagan’s dissent was not mild, either—it reads as strenuously as a vintage art-critical piece by, say, Clement Greenberg, slamming Harold Rosenberg—thus producing an image of two liberal Justices going hammer and tongs over brow-furrowing matters of aesthetics and the marketplace. Though some Court watchers will doubtless be disturbed by the absence of the traditional deference given by one Justice to another, others—given the tendency of the Court, on the right and dominant side, to use naked rationalizations for what are, transparently, previously arrived-at ideological diktats—will find the presence of actual argument enlivening. We live in an era of such ideological solidarity, for reasons good and bad, among people who are perceived to be on the same “side,” that any little peek of serious debate between them seems wholesome, not to mention welcome.

The two opinions certainly make for chewy reading, not least because the question of what is recycling and what is theft is one of the oldest and knottiest in the aesthete’s arsenal. A connoisseur of these things, with whom in a distant time I shared a bunk bed, has beautifully illuminated the subject from the specific view of what a working “appropriation” artist is to do now that appropriation has been put on warning. There will be some who feel that, if the decision stills the hand of the appropriation artist, it might not be wholly bad for the world’s store of beauty, appropriation being one of those things that may not be endlessly rewarding when placed in permanent rotation. John Cage’s famous composition “4’33”,” made up of silence, however interesting to contemplate in the singular instance, is, by definition, not necessarily super-rich in its echoing afterlife; an entire playlist made up only of ambient noise would be hard to endure. Similarly, having once had the Duchampian insight that a work of art might be whatever is deemed to be one, with a bicycle wheel or a urinal counting, if an artist decides so to decree it, one might not find it limitlessly entertaining if endlessly reproduced. In any case, appropriation tends to be judged appropriate as long as what’s being appropriated isn’t you, or yours. The aesthetics and the commerce of appropriation tend to bend to one’s interests of the moment. (I remember a famous appropriation artist of an earlier decade protesting the price of a knockoff modernist table, over a downtown dinner. “It wasn’t like it was original or anything,” she pointed out.)

Two additional knots might, however, be usefully braided around the subject. “Fair use” and “artistic expression” will remain much argued-over questions. But the concept of parody is one that, on the whole, seems easier to parse and is, perhaps for that reason, well supported by law. The Supreme Court itself, in 1994, allowed 2 Live Crew to replay riffs from Roy Orbison’s “Oh, Pretty Woman” to its own satiric ends. Justice Sotomayor’s opinion in the Warhol case cites that decision—Campbell v. Acuff-Rose Music, Inc.—and parody, generally, as a clear case of fair use, with the literal nature of the appropriation seen as essential to the satiric effect. So parody is privileged, and widely appreciated. Many for whom elements of Warhol will stick in their craw will have no difficulty delighting in Weird Al Yankovic, whose parodies depend on a strict deadpan fidelity to the originals that is, in many ways, Warholian. (In Yankovic’s parody of “Smells Like Teen Spirit,” almost every note and warble of the Nirvana original is reproduced; the brilliance resides in the self-referential lyric about Yankovic’s inability to understand what Kurt Cobain was singing about: “Now I’m mumbling / And I’m screaming / And I don’t know / What I’m singing.”)

And here one might find common ground between Justices Kagan and Sotomayor, if one accepts that the quality we think of as added artfulness in a borrowed image is almost always much closer to parody than to piety. Kagan writes, “Creative progress unfolds through use and reuse, framing and reframing: One work builds on what has gone before; and later works build on that one; and so on through time,” and she adds, “In declining to acknowledge the importance of transformative copying, the Court today, and for the first time, turns its back on how creativity works.” Though admirably erudite—it’s what an art historian would want a Justice to say—the analysis is perhaps a bit needlessly anodyne. The image of virtuous artists happily passing around pictures for general improvement belongs more to a progressive kindergarten than to the actual processes of art, which are more often moved by rancor, Oedipal drama, and competitive put-downs. The point of vital recycling is most often not to encourage communal creativity but to give a kick in the pants to the past. When Manet recycled a Raphael composition for “Le Déjeuner sur l’Herbe,” he was not sincerely recycling a classic but mocking the dead hand of academic repetition. If there is a nod to Raphael in Manet’s picture, it is more in the nature of a wicked wink than a deep bow. Transformative copying transforms only when it has an edge, and that edge cuts.

In this light, Warhol’s early Campbell’s soup-can paintings and Brillo boxes can fairly be called—indeed, one understands them best if one sees them so—as parodies of the pretensions of high art as much as of the intensifications of advertising. Though Justice Sotomayor references a “commentary on consumerism,” that is not really what the invention of Pop art was most significantly about. What both Warhol and his contemporary Roy Lichtenstein were parodying in their work was the abstract and metaphysical ambitions of the Abstract Expressionist “action painting” that preceded them. By asserting the Whitman-esque thingness of the ordinary things that the Abstract Expressionists so strenuously rejected, Warhol and Lichtenstein were up to a kind of tense and subtle form of parody that, like all great parody, both mocks the source and flatters it by the attention paid.

Parody can, in other words, be a big thing. One need not get stuck on the Duchampian mechanical moves to support an idea of fertile and creative recycling in a comic-ironic mode, of a kind which is already seemingly secure in law. And here we may glimpse the bottomless ocean of potential parodic recycling that lies within the new domains of artificial intelligence. The reason that A.I. can do what it does is that it draws on a vast reservoir of other people’s inventions. If it can imitate Winslow Homer or Richard Avedon or any other artist—and it can—it’s because it has gained access to a lot of Homer and Avedon and didn’t ask first if it could. The harm done here is by the relentless scavenging of other people’s creativity in order to create a creativity, however ersatz or shallowly grounded, of its own. Comforting though it may be to see the new A.I. as essentially a parody of intelligence, it may also show us parody’s limits.

In that sense, Justices Kagan and Sotomayor may both be, so to speak, arguing over the architecture of sandcastles while a tsunami of artificial appropriation threatens to shortly wash them, and us, away. But, then, all aesthetics are an argument about the architecture of sandcastles. Or, as James Thurber put it—and let us, while repurposing his thought, politely name him as its initiator, or rather its imitator, since he had, as we all must sooner or later, borrowed the phrase from another—“the claw of the sea-puss gets us all in the end.” ♦



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Home + Away artwork opens in Vancouver’s Hastings Park



A new art installation now towers over Vancouver’s Hastings Park fields in celebration of the city’s history of spectators and sports.

Home + Away is a sculpture by Seattle artists Annie Han and Daniel Mihalyo of Lead Pencil Studio, which opened Monday in the southeast end of the historic park.

It’s a 17-metre-tall structure that resembles a narrow set of bleachers — similar to the stands of the Empire Stadium, which stood on the site of the park from 1954 to 1993 and hosted The Beatles, among many others. It recalls a covered ski jump that stood there in the 1950s and the nearby wooden rollercoaster at the PNE.

The city says the public is invited to walk the stairs and sit on the benches.

“In addition to being visually striking, this artwork is intended to be ascended, sat on and experienced. It offers exciting experiences of height and views and provides 16 rows of seating for up to 49 people, making for a unique spectator experience when watching events at Empire Fields,” the city said in a release Monday.

The idea for the park to include public art was outlined in the Hastings Park “Master Plan,” first adopted by the city in 2010. The city says Han and Mihalyo first presented their design in 2015.

“It’s wonderful to see this piece realized within the context of such a well-used public space,” said Han.

Home + Away was inspired directly by the site history of spectatorship, and we hope it will connect Hastings Park users to that history and the majestic views of the environment for many decades to come,” added Mihalyo.

The artwork features a large light-up sign, in the style of a sports scoreboard, that reads “HOME” and “AWAY.”



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Bill Viola, Video Artist Who Established the Medium as an Integral Part of Contemporary Art, Dies at 73



Bill Viola, whose decades-long engagement with video proved vital in establishing the medium as an integral part of contemporary art, died on July 12 at his home in Long Beach, California. He was at 73 years old. The cause was complications related to Alzheimer’s disease. The news of his passing was confirmed by James Cohan Gallery.

Viola’s works are centered around the idea of human consciousness and such fundamental experiences as birth, death, and spirituality. He delved into mystical traditions from Zen Buddhism to Islamic Sufism, as well as Western devotional art from the Middle Ages and the Renaissance in his videos, which often juxtaposed themes of life and death, light and dark, noise and silence. These explorations were achieved by submerging viewers in both image and sound with cutting-edge technologies for their time.

“I first used the camera and lens as a surrogate eye, to bring things closer, or to magnify them, to experiment with perception, to extend vision and make lengthy observations of simple objects,” Viola said in a 2015 interview. “Once you do that, their essence becomes visible. So I suppose I was always interested in the inner life of the world around me.”

Beginning in the 1970s, Viola created videotapes, architectural video installations, sound environments, electronic music performances, flat panel video pieces, and works for television broadcast—all of which expanded the scope of the medium and established Viola as one of its most notable practitioner.

Video still of a man diving into water that has been reversed. The image is mostly black and teal.

In 2003 the Whitney Museum of American Art in New York; Tate, London; and the Centre Pompidou in Paris jointly acquired Bill Viola’s 2001 three-channel video installation Five Angels for the Millennium.

Photo Kira Perov/©Bill Viola Studio

Bill Viola was born in 1951. He grew up in Queens and Westbury, New York, and attended P.S. 20 in Flushing, before receiving his BFA in experimental studios from Syracuse University in 1973. There, he studied with visual art with the likes of Jack Nelson and electronic music with Franklin Morris.

Following his graduation, between 1973 to 1980, Viola studied and performed with composer David Tudor in the music group Rainforest, which later became known as Composers Inside Electronics. He also worked as technical director at the pioneering video studio Art/tapes/22 in Florence, Italy from 1974 to 1976. During that time he encountered the work of other seminal video artists like Nam June Paik, Bruce Nauman, and Vito Acconci.

Viola was subsequently an artist-in-residence at New York’s WNET Thirteen Television Laboratory between 1976 to 1983, wherein he created a series of works that premiered on television. He traveled to the Solomon Islands, Java, and Indonesia to record traditional performing arts between 1976 and 1977. Later that year, Viola was invited to show work at La Trobe University in Melbourne, Australia, by cultural arts director Kira Perov, with whom he married and began a lifelong collaboration.

He was appointed an instructor in advanced video at the California Institute of the Arts in Valencia, California in 1983. He was the Getty Research Institute scholar-in-residence in Los Angeles in 1998 and was elected to the American Academy of Arts and Sciences in 2000.

In 1985, Viola received with a Guggenheim Fellowship for fine arts, and later that decade, in 1989, he was awarded the MacArthur “Genius” Fellowship. His work was also featured in some of the world’s most notable exhibitions, including Documenta VI in 1977, Documenta XI in 1992, the 1987 and 1993 editions of the Whitney Biennial, and the 2001 Venice Biennale.

In 1995, he represented the United States at the 46th edition of the Venice Biennale. For the pavilion, Viola produced the series of works “Buried Secrets,” including one of his most known works The Greeting, which offers a contemporary interpretation of Pontormo’s oil painting The Visitation (ca.1528–30). The Deutsche Guggenheim Berlin and New York’s Guggenheim Museum commissioned the digital fresco cycle in high-definition video, titled Going Forth By Day, in 2002.

Viola’s work was the subject of a major 25-year survey at the Whitney Museum of American Art in 1997, which subsequently toured internationally. His work has been the subject of major museum retrospectives in the years since, including at the Grand Palais in Paris (in 2014), the Palazzo Strozzi in Florence (2017), the Guggenheim Bilbao in Spain (2017), and the Barnes Foundation in Philadelphia (2019), as well as an exhibition pairing his work with that of Michelangelo at the Royal Academy of Art in London in 2019.

Viola is survived by his wife Kira Perov, who has been the executive director of his studio since 1978, and their two children.

“One thing that’s very exciting about video that has turned me on since I first saw this glowing image way back in 1970 is that it can be so much,” Viola said in a 1995 with Charlie Rose on the occasion of this US Pavilion at the Biennale. “Furthermore, what’s really exciting is I don’t think it’s been since really the Renaissance where artists have been able to use a medium that one could say is the dominant communication form in society.”


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Couple’s winning art projects adorn overpass



Annabelle Harvey and Corbin Elliot are partners: in life, love, and art. Thanks to their creative pursuits, now they are also joined in the recognition of their work along the Lakeshore overpass.

The City of North Bay, in collaboration with the Public Art Advisory Committee (PAAC), recently held an event to acknowledge the successful applicants for the Lakeshore Drive overpass banner project. This initiative features 14 artworks created by local artists, highlighting the ongoing commitment to bringing public art to the community and celebrating local talent. The banners were installed early last week.

On behalf of PAAC, Katie Bevan noted that 71 submissions were received for the banner art project. “Selecting just 14 artworks from such outstanding submissions was no small feat. It truly highlights the incredible creativity within our community — and it’s only growing.”

Bevan acknowledged all who submitted their work and congratulated the 14 winners:

  • Caitlin Daniel
  • Corbin Elliot
  • Adam Fielder
  • Ian Gauthier
  • Ruby Grant
  • Annabelle Harvey
  • Penny Heather
  • Robert Johannsen
  • Robyn Jones
  • Gerry McComb
  • Victoria Primeau
  • Tessa Shank
  • Rana Thomas
  • Claudia Torres

“This is the first time I’ve participated in something city-wide, and I’ve been really interested in getting more involved in the art community,” said Harvey, a teacher by vocation when not helping to beautify North Bay. “I’ve worked a lot with the WKP Kennedy Gallery and I’ve been putting in submissions for some of their group shows. So, this is a cool opportunity to try something new. This is the first time I have done digital work. Usually, I like painting and collage. So I was interested just to try something new.”

In September 2023, public art gained more prominence in North Bay as 12 pieces by eight local artists selected by the Public Art Advisory Committee were placed on aluminum panels mounted onto the public buildings in both Champlain and Sunset parks.

Harvey’s partner Elliot is an emerging artist and a Fine Arts graduate from Nipissing University who says his passion for bringing his vision to life has only grown, thanks, in part, to these public art initiatives.

“There is so much opportunity to have a lot of different public art in different spaces,” he says. “So, when I saw that there was a variety of different artists and voices being accepted, of course, I wanted to have my vision out there in the city, to make my mark and be a part of that kind of trajectory of building the art scene within the city.”

The couple share a studio space, often working on separate projects at the same time while collaborating with encouragement and ideas.

“We are working on different mediums, a lot of the time,” Elliot said. “We have our own corners set up in the studio and I’ll usually be on my easel and Annabelle will be doing something…”

Harvey picked up his thought, “I’m usually at my desk doing pottery, jewellery, collage — I do a lot of different things.”

Couple Annabelle Harvey and Corbin Elliot each earned a spot among the 14 winning banner art projects. Stu Campaigne/BayToday

For Harvey, working so closely together is her “favourite part, especially watching his creative process.”

Elliot added, “I think I’m more non-verbal as I’m creating. I often hear you saying, ‘Oh, I think I like this.'”

Both have active Instagram pages featuring their artwork, Harvey’s can be found here, and Elliot’s here.

Elliot has a show at the WKP Kennedy Gallery, entitled “Upon a Star,” opening Sept. 13. “I’ll have my own solo exhibition. I typically work in painting. I have a big body of work with paintings,” he said.

The City of North Bay and PAAC encourage everyone to take a moment to appreciate these works of art when passing by the overpass.

Harvey and Elliot are thrilled about the banner art project.

“It’s like seeing your vision come to life. We’ve had lots of friends, even before we saw them today say excitedly, ‘I saw your work on the overpass,’ it’s just a proud moment to have so many eyes on our work.”



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