Social unrest is almost never about a clash of absolutes, but a clash of relativisms. Even — especially? — relativisms that pretend to being absolutes, particularly those that are self-designated absolutes of a self-designated elite.
- I've been railing against false nostalgia since the 1970s, when the toxic popularity of Happy Days (with its ardent disdain for learning, its utter nondiversity across at least six axes, and its relentless impetus toward conformity) and similar "entertainment" was readily apparent to middle- and high-school me. I, for one, have no intentions of returning to a day of significant risk of tuberculosis, Nurse Ratched as a role model, a mental health profession focused almost exclusively on "deviancy," the draft, the original NIMBYs of school busing, "the purpose of the police is to preserve disorder"… the list could go on for several pages. (We just will not contemplate the horror that is nostalgia for disco.) Pages not encumbered by a need to fit the list onto 8.5x11 paper extruded from an Olympia manual typewriter.
But, like so much false nostalgia, it's all about marketing. Far too often, it's about marketing efforts in favor of entrenched elites, who too-frequently got there by taking advantage of blatant bigotry. Consider those "family farms" for a moment, and delve into their origins. Not too closely, though, or out west one might find more than a few exclusions of those with enhanced melanin from programs otherwise available to all, and rampant antisemitism, and so on. (Nearly as much as for big-city-east-coast land ownership.) So the next time you're buying local, or "organic," stop and consider the probability that part of the higher price is a white-farmer premium — especially when it's corporatized "family" like "the Walton family," and no I don't mean the false-nostalgia-for-the-Depression TV one. It's not that that should stop you — third-generation farmers need to (under)pay their seasonal workers, too — it's that it should make you think for a moment about what you're really buying (or at least what you're really being sold, which isn't always completely congruent).
- No field of study or endeavour lacks dumpster fires. Certainly not the military, always training to fight the last war (and selecting leaders from those who fit the one before that). Certainly not the law, relying upon the narrow education and experience of lawyers to pithily summarize "facts" that become written in stone — or at least headnotes (themselves often written by people at least five steps removed from the actual data). And the arts… oh my.
- But at least many of those blind spots are unintentional, lack outright deception in favor of ill will, self-aggrandizement, and sociopathic narcissism. At a fundamental level, it's really important to remember that a Gaussian distribution is descriptive, not proscriptive (something that the mental health profession has never engaged with since it discovered that putting "self-reported-and-categorized behavior" on a Gaussian distribution leads to more article publications and higher insurance payments). Those who don't, or can't, buy in to the particular behavior being pushed are part of the data set, too…
- …like real journalists — those who actually inquire in controversial areas, and carefully evaluate their data, and when the data justifies it question the rich and powerful (and sociopathic). That the UK's ultrarich have been forced to move from holding the high justice themselves to delegating it to others (whether knights errant or error-ridden knights is for another time!) just slightly softens matters — and still leaves the entitlement leading to Partygate. Of course, the UK press stole that meme from the former colonies, which jumps into the reflexive loop of considering journalistic purpose and integrity.
- But that's no excuse for ignorance among journalists, especially when utterly ignoring context. Consider mock outrage at a Prime Minister not using public transport, and ask yourself the silly question "What Would the Security Team Recommend?" regarding a "head of government" using "public transport" for a particularly politically-charged, already-violently-protested topical speech? Using a helicopter was arguably the least disruptive means…
- It's especially not an excuse for ignorance among journalists purportedly covering "the arts" when they fundamentally misconstrue several distinct, controlling aspects of the "controversial" (yes, those are scare quotes) intersection of a fact-specific legal doctrine with a fact-specific "artistic" dispute outside the scope of that doctrine. And especially so when one of the participants is the same, enabling subtextual shaming as "disloyal to Art"…
- Bluntly, the Court's opinion in Goldsmith ineptly — at the invitation of lawyers on both sides who had their own agendas, driven in part by the vicissitudes of civil procedure — focused on the sexy copyright-doctrine issue without emphasizing enough, or clearly enough, that the dispute was not about creating art, but about exceeding the scope of a license that otherwise authorized that creation. That is, it was the exploitation that was at issue, not the art. Admittedly, they were encouraged to do so by their collective unfamiliarity with eighteenth-century conceptions of how precatory language works, as reflected in the particular wording of the Intellectual Property Clause, but that's for another time, another few hundred (thousand?) footnotes, and itself flawed by a distorted data set.
- And in that light, Mr Montgomery is probably in the wrong. The choice of distribution method is unintentionally revealing. Had this been hung in a gallery (hackcoughtphhhhht), or published to illustrate a considered analysis of the Goldsmith opinion (or, for that matter, of the perfidy of periodical publishers!), one might well accept the "real comment" aspect of "fair use" with which this has been rationalized ex post. Instead, though, it's on [anti]social media, which is inherently infected with self-advertising and self-aggrandizement — which rather directly undermines any pretense concerning "real comment." In this instance,
- Further, Ms Cascone (and, as usual, ArtNet) utterly failed to consider the non-Goldsmith-decision aspects of Ms Goldsmith's circumstances. Pathetically obviously, for one, there's no consideration of the mandatory-defense requirements of trademark law and the Lanham Act — aspects that forced her to object. That Goldsmith didn't formally consider those aspects makes them no less real, no less necessary… especially since Goldsmith explicitly confined itself to rejecting one defense out of many (which had, on those facts, already been rejected but may not be accorded the same weight or analysis in different factual contexts).
- Finally, it's definitely worth considering whose conduct is at issue. Not in the sense that "Montgomery is a dubious artist and therefore an infringer" (I have no knowledge of Mongomery's reputation, works, or anything else… and in many senses "dubious artist" includes Picasso and Toulouse-Lautrec and Dali), but Goldsmith was about the misconduct of a transferee in exploiting a work, not about whether the artist was entitled to create and display the works in the first instance. Once we're talking about a transferee's conduct, continued viewing through the lens of "artistic license/integrity/impulse" gets rather kaleidoscopic. Which is, of course, rather the point of "real comment" as an element of a fair-use defense.