One of the problems with being an art historian (or legal scholar, for that matter) is that one often finds herself using a crude man to exemplify a fine principle. If you want to explain why Cubism is world-changing, you’ve got to say nice things about Pablo Picasso. If you want fair use to expand, you’ve got to say nice things about Richard Prince.
I’m tired of writing nice things about crude men.
I wrote most of my doctoral dissertation during the 2016 election cycle. After Trump’s rise to power, I found it much more difficult to say nice things about crude men in service of my academic conclusions. After the growth of the #MeToo movement, I found it utterly impossible.
We expect fair use to be fair (this seems inherent to the concept) but its outcomes rarely feel equitable. After 10 years studying fair use, I realized that copyright law rarely provides “fair” outcomes for artists in the present and the rules laid down in legal opinions cannot be trusted to provide coherent guidelines for the future.
During the writing process, my curiosity turned to interpersonal relationships between artists and extralegal solutions to disagreements over image reuse. I eagerly sought examples of positive interactions and successful negotiations between “originators” and “appropriators.” Or, more accurately, "Artists-from-whom-an-image-was-sourced" and "Artists-sourcing-an-image." Like a negative shape, the paucity of precise descriptors for these relationships illustrated the boundaries of our cultural assumptions about originality, copying, theft, primacy, and creativity. It was hard to express my values in legal terms because copyright law didn’t afford the nuance I needed. I became more interested in and trusting of ethical guidelines for fair use.
My husband joked that my dissertation should be titled “How Not to Be a Dick: 400 Pages On Basic Courtesy.”
In the most basic terms, “not being a dick" means taking responsibility for your words and actions. Unfortunately, artists are frequently - but inconsistently - excused from such responsibility. In art critical circles, the utility of artists’ writings/statements as guides to interpretation of their work has been an open question for four decades. This line of questioning was recently revived in legal scholarship on appropriation art, in writing that absolved appropriation artists of all responsibility for the conception, creation, and interpretation of their work. This is a misguided direction for legal and art critical theory, and a terrible direction for copyright jurisprudence.
Artists’ writings, opinions, and explanations are exceedingly revealing and helpful aids to establishing fair use because they are creative, often poetic, philosophical, and thoroughly inventive, refusing to follow common and ordinary forms of expression. Artists’ spoken and textual additions to their artworks are sometimes inscrutable, especially to non-experts, but that doesn’t mean such resources can be simply discarded, and certainly not on the pretexts commonly proffered.
Legal scholars, art critics, and judges often treat artists as brilliant geniuses, then (sometimes in the next breath) infantilize them. Over the last few centuries, particularly in the United States, artists have been subjected to comparisons with children, the insane, and the intellectually handicapped; judgments that they have not only sometimes embraced but also encouraged. That said, such comparisons are unhelpful when it comes to copyright jurisprudence, to determining the merit of artistic appropriations, and to assessing the “fairness” of an artist’s use of pre-existing material.
Unlike children, the insane, and the intellectually handicapped, artists cannot be freed from responsibility for their writings and statements, and they cannot be freed from the consequences of their actions, writings, and statements. Appropriation artists must be responsible for the material they source, and responsible to those from whom they source images.
Responsibility doesn’t necessarily imply obtaining permission; but responsibility may require attribution, compensation, and, at the very least, careful consideration.
Throughout the writing process, I felt increasingly tired. This is normal; writing a dissertation is an intellectual marathon. However, my fatigue had a distinctly feminist quality that I recognized from prior iterations of intellectual growth.
I was tired of feeling like my academic positions opposed my core values.
I was tired of sticking up for wealthy, famous, lionized men who exploit young, poor, and less powerful artists.
I was tired of defending privileged men who can say dumb things in support of autocrats because their privilege insulates them from the effects of that autocrat’s policies.
I found myself unable to devise nuanced positions on behalf of such men. (And women - but I happened to be writing about men.) My thought process was actually was less black-and-white than before, for I stretched to empathize as never before. But my own positions became stark and uncompromising.
After I graduated, it became clear that I could not publish what I had written, nor could I ever again write about appropriation in the kind of intellectual vacuum created by law school and graduate school. My values came into sharp focus and I couldn’t think the way I did before.
I value equity and compassion. Thus, I became interested in finding, experimenting with, and living out alternatives to the systems of patriarchy and capitalism that empowered these men.
I value my freedom, autonomy, and rights. Thus, I became interested in the ruthless embodiment and expression of my feminist values, regardless of detriment to my finances, status, popularity, and relationships.
I value artists who seek to better the world, especially their immediate communities. Thus, I became interested in thinking about, engaging with, and supporting locally-oriented artists whom museums, galleries, and academic journals too often overlook.
For I, too, am responsible for what I say, write, and do. I decided that my life, my time, my focus, and my resources needed to be redirected until every decision and action - all day every day - clearly expressed these values. This means using my ridiculous privilege and extreme education to provide others with a safe container in which we may together experiment with alternative structures that more effectively empower all artists and art collectors, not just those who most readily benefit from the privileges conferred by patriarchy and capitalism.
 For example, Richard Prince’s deposition in Cariou v. Prince, which inspired vicious criticism of artistic testimony, evinces a sharp intelligence and clarity of thought. While his fantastical foundations for Canal Zone are difficult to follow, his responses to questions about his production process, sales, and limited understanding of copyright law are extremely precise and logical. See Greg Allen, ed., The Deposition of Richard Prince in the Case of Cariou v. Prince et al. (Zurich: Bookhorse, 2013).
 See Albert Rothenberg, Creativity and Madness: New Findings and Old Stereotypes (Johns Hopkins University Press, 1990).
 This statement applies to me, not to all feminists. I have rare levels of freedom and flexibility at this point in my life. Many of my prior compromises were based on needs for financial security, to blend into less accepting environments than Asheville, or basic human desires for connection.