This looks like a good topic for someone to pick up and write about...

I've mentioned this before: What I'm looking for in art is a transformative experience. Art that confirms what I've been thinking all along, that doesn't challenge me as a person, that doesn't have a human (maybe too human) creator at its origin doesn't interest me all that much. I'm hoping to become at least a different person (if not a better person - speak about lofty goals!) by exposing myself to art.

Have a look at Malick Sidibe to get an idea of what I am talking about. The book contains an overview of the African photographer's work across time. What keeps me excited about this work - regardless of how often I look at it - is the immensely uplifting human spirit caught on film.

An "immensely uplifting human spirit" - it's hard to imagine someone would say that about Snow's photographs. Brush away the (obvious) display of alienation, and you're left with a big void. I know, some people like to party hard, but how is that something I do not know?

I do feel sorry for what happened to Dash Snow. When I heard he had died, I was a shocked. I wished he had not become a part of an art world that seems to be longing a bit too much for a tortured artist, who'll satisfy the standard narrative (no need to spell it out, is there?).

Maybe that's really what bothers me so much about those Polaroids - that they're being celebrated not for their artistic merit (there clearly is very little - if any) or because of the artist or because of what they might have meant for and said about the person who took them. They're celebrated for the spectacle.

In that sense, Dash Snow's party Polaroids aren't so much about the parties or the fun or the person who took them, they're more about something the art world just loves to see. This is, of course, where the comparison with Malick Sidibe's work becomes most jarring, because Sidibe's work is too multi-dimensional to satisfy anything the art world might want to see. They don't lend themselves to being used in such a way.

Open Malick Sidibe, and on the page after the introduction, there are the photographer's own words, which in their honest simplicity might leave you a bit speechless. There's no pretension. It's almost too simple, except when you look at the photographs, what really is going on is that it's no effort for the photographer to do what he is doing.

There's an older Steidl book of Malick Sidibe's work, which I don't own, so I can't make any comparisons. This Fondation Zinsou edition is beautiful. They seem to have gone a bit overboard with the clear lacquer finish put on most of the pages (there are two smaller inserts, with different paper), so every time I open my copy, pages stick together. That aside, Malick Sidibe is a real treasure, containing some of the most wonderful photography I've seen in a while.

It's timeless, and it reaches across divides. It also manages to get around the various mechanisms we all have set up to deal with photography - somehow the work manages to sneak inside us. Instead of arming us more (Snow), it disarms us.

Sidibe's work really is something to be experienced, and if you're wondering why you could possibly be interested in studio photography taken in Mali, get the book, because you're sure to find out.

Malick Sidibe, with a brief introduction and a page of quotes by the photographer (in French and English), published by Fondation Zinsou, 191 pages, 2009

A Village Lost and Found presents each and every one of these images, with explanations of what they contain and, where possible, where they were taken - often with contemporary images to compare (these are also in stereo). The book comes with a stereo viewer, so you can see a rural English village in the 1850s just the way it was - or maybe as close as you will ever get. A Village Lost and Found really is a bit of a time machine, certainly if you allow your imagination some freedom (and if you take the time to read the book).

A Village Lost and Found certainly is a good reminder that contemporary photography has emerged from all kinds of beginnings, including this one, where a photographer tried to produce a portrait of a whole village. The stereo imagery aside, it is not such a stretch to compare Scenes in Our Village (that was the original title of the set) with the efforts of some contemporary photographers.

And maybe A Village Lost and Found can serve to rekindle the passion for photography in those who like to complain about how there's nothing new any longer, or how photography supposedly is "dead": Well, there still is a lot to be discovered. So why not start by looking at something like A Village Lost and Found? I'll happily admit it was much more fun for me than I would ever have imagined.

A Village Lost and Found, photographs by T.R. Williams and Brian May, with text by Brian May and Elena Vidal, 240 pages, includes a stereo viewer, Frances Lincoln, 2009

(updated below - twice)

Likewise, can you just paint a pixelated photograph? Is that fair use? (note, we're in Shepard Fairey territory here)

This is what the law actually says:

"One of the more important limitations is the doctrine of "fair use." The doctrine of fair use has developed through a substantial number of court decisions over the years and has been codified in section 107 of the copyright law.

"Acknowledging the source of the copyrighted material does not substitute for obtaining permission."

Needless to say, copyright law in other countries can differ quite a bit from this.

From these lines it's pretty obvious why Rob writes that "fair use needs a stronger definition." The big question is now how to produce such a stronger definition, which manages to protect artists from their art being "stolen" (or "misused" or whatever other word you want to use), and which allows artists to produce art that incorporates other people's art in whatever way.

I've thought about this whole complex for a while now, and I'm afraid I don't have a good answer that will satisfy each and every case mentioned in this post at the same time.

For a while, I toyed with what you might call the "inversion principle": If you transform a piece of art done in some medium a into something done in a different medium b, then it can only be called fair use, if you would call it fair use if it went the other way around. For example, if you want to make a sculpture out of a painting, then you'd have to be equally happy with someone making a painting out of the sculpture. Unfortunately, once you insert "photo" in there (instead of "painting") trouble ensues.

In the end, it really comes down to what the current law calls "the amount and substantiality of the portion used in relation to the copyrighted work as a whole" - how does one define this more strongly?

Ideas anyone?

Update (4 February 2010): David Friedman emailed me (thank you!) with an actual fair-use case involving sculpture and photography that had made it to the courts: "A photographer named Art Rogers took a black and white photo of two people with a bunch of puppies. Jeff Koons saw the photo on a postcard and made a sculpture from it. Rogers sued Koons and won. This website highlights the issues considered by the court, and why they ruled in the photographer's favor despite Koons' claim of fair use".

To quote from the article: "The court found Koons infringed Rogers' copyright, concluding that:
* Rogers' photo did indeed have sufficient originality (in the lighting, composition, angle etc.) to merit its own copyright;
* Koons had copied the photograph, as he admitted having access to the image and his instructions to his artisans commanded them to copy it closely;
* This direct evidence of copying and the substantial similarity between the two works was enough to infer copying; and,
* Koons had not just taken Rogers' idea, but also the expression of it, rendering the copying illegal."

Note the "substantial similarity between the two works" here (see "the amount and substantiality of the portion used in relation to the copyrighted work as a whole" from copyright law cited above).

Oh, and David also sent me another article, also about Koons and (un)fair use.

Update (5 February 2010): And more.

Rob's suggestion that "In an era where photographs are easily copied I think fair use needs a stronger definition" I couldn't disagree with more. Do you really want the people who are currently trying to being Americans health care sit down and define what "fair use" is? Remember, this is what this comes down to - it's a law, and a "stronger" definition of what fair use is would have to be put into law.

I've argued before - and I'll happily do it again - that leaving cases of fair use to the judges (and to politicians who write the laws) is the worst possible solution for art.