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The “Bad Art Friend” Saga : A Roundtable Discussion Amongst 4 Good Art Friends

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So, it’s a Friday, and I get messages from Pauline and Usha. They’ve been talking about a New York Times Magazine article that’s gone viral: Who is the Bad Art Friend?

Did I have any thoughts on the matter, they ask. Since I live in a cave, I’m not always up on the latest — apparently the entire interwebs have been debating this thing. I read up, and suggest to my Plural pals – Pauline (PG), Usha (UC) and Michelle (ML) – let’s do a Roundtable.

The Times piece is long, but many issues are at stake: friendship, ethics, race, representation, artistic source material, white privilege, copyright, social media, and so on. Among the many other articles on the topic, we recommend these two: ArtNet’s Obsessed With the ‘Bad Art Friend Case? We Are, Too. Here’s How a Recent Art Copyright Decision Could Shape the Outcome, and Vanity Fair’s Why Facebook May Be the True ‘Bad Art Friend’.

At the crux of the conflict are two writers, Dawn Dorland and Sonya Larson. Dorland thought Larson was a friend. Dorland had donated a kidney to a stranger, and Larson wrote a fictional story that used a kidney donation as a plot point, without mentioning it to Dorland, or acknowledging her as source material. This upset Dorland, who felt Larson’s work appropriated her own life-story. Larson contends that creative writers have such poetic license, and feels that Dorland is now trying to insert herself as the central issue in Larson’s story, when it’s really about other themes.

The New York Times Magazine article that started it all.

Lee Weng Choy (LWC): To kick off our discussion, let me ask, whose side are you on, Dorland’s or Larson’s?

PG: Honestly, neither of them come off well in this whole storm-in-a-teacup, but if I had to pick a side, I’d be on team Larson! Writers (and artists) borrow from real life all the time — if I ever decided to write a book or story I’d probably create characters, whether consciously or not, who might be an amalgamation of various people I have observed, maybe even laughed at or made fun of. (Okay, Larson is kind of a “mean girl”!)

Where Larson tripped up, as the ArtNet story points out, is when she copied, almost verbatim, Dorland’s open letter, in that version of the story that was published on Audible in 2016. She has since revised the wording and adjusted the language though.

Aside from the merits of the case for/against plagiarism, Dorland just scares the hell out of me! Red flags everywhere. Who tracks whether someone liked or responded to a Facebook post and, if they didn’t, asks them why not?

UC: Oh I agree that I disliked them both, and certainly, art is always inspired by life. But in the end, the blatant copying of that open letter was what sealed the deal for me. Dorland really did seem odd, and like she did have some kind of weird saviour complex. (My favourite bit of the mean girl exchange: ““Right??” Larson wrote. “#domoreforeachother. Like, what am I supposed to do? DONATE MY ORGANS?””)

But, did this strange and unlikeable woman deserve to have her writing stolen and published on Audible, while someone else took the credit for it? I don’t think so. But there are interesting issues that come out of this — primarily, when does inspiration become plagiarism or an infringement of copyright? There are plenty of examples in the local art scene too, lest we forget Lee Wen’s Ping Pong Go Round and Jane Lee’s encounter with Monica Delgado. Even more recently, the use of this couple’s wedding photograph in a People’s Association standee that had everyone up in arms.

Jane Lee, Aum, 2013 (Private Collection)

 

A page on artist Monica Delgado’s website, with a selection of her works.

ML: Maybe I’m more willing to cut Larson slack because I too am an incurable gossip and see nothing wrong with saying terrible shit about other people behind the presumably closed doors of a private Whatsapp chat. To me, that is the far lesser evil compared to the borderline narcissistic/sociopathic behaviour of tracking down who has liked your Facebook posts so that you can confront them about why they haven’t validated you for the goodness of your actions, and then bulldozing your presence into someone else’s creative work on a technicality. But then, god help me, since every day our civil liberties and right to privacy erode a little more, right?

LWC: My impression of the Times piece is that Robert Kolker, the writer, really tried to present both of them fairly, accurately and in some depth. I agree too that neither Dorland and Larson look good, but it’s important to remember how complicated personal relationships can be, and we may, in fact, be missing some crucial context.

Since Usha and Pauline are lawyers; I have a question for either of you two.

I’m uncomfortable with how the law settles disputes like these. The ArtNet article refers to an Andy Warhol case. A photographer, Lynn Goldsmith, took a picture of Prince, which Warhol appropriated and then painted à la his Marilyns. Goldsmith sued and won. “The judge found that Warhol imposing his own artistic style on the original photograph wasn’t sufficiently transformative to meet the standards of fair use.”

Say what? … Yeah, maybe Goldsmith deserves some compensation. However, one of the major art historical and theoretical precedents that Warhol established was this blatant appropriation of popular imagery. Is Duchamp’s signature — not even his own name — and laying a urinal on its side rather than mounting it vertically, well, is that transformative enough, by the judge’s logic? (I know there’s no party to sue on behalf of the urinal.)

It’s one thing for the Warhol Foundation to pay after mediation to settle a dispute, but when the courts decide, isn’t that about establishing and then enforcing parameters on matters that cannot be settled in art history? There are no clear and simple rules in contemporary art. It’s radically situational. But legal precedents don’t operate that way, do they?

Does it matter that these things go to court, rather than get settled in mediation? I think I’d prefer the latter. The way I see mediation is that its underlying ethics are about negotiation and compromise, rather than about proving someone right or wrong.

Photograph of Andy Warhol, by Jack Mitchell (via Wikimedia Commons).

UC: Haha, well this gossip session has taken an unexpectedly academic turn! But ok, let’s take a look at the judgement more closely. First, you are right that courts perhaps should not see themselves as art historical experts and it’s a point that’s actually acknowledged by the court in its written judgement. In assessing the “transformative nature” of Warhol’s work while applying US copyright laws, the court clearly stated that, “The district judge (in the lower court) should not assume the role of art critic and seek to ascertain the intent behind or meaning of the works at issue. That is so both because judges are typically unsuited to make aesthetic judgments and because such perceptions are inherently subjective.”

Of course, a statement like this sounds great in theory, but when the application of the law involves assessments by the courts on things such as whether a secondary work (like Warhol’s) can “reasonably be perceived as embodying an entirely distinct artistic purpose, one that conveys a “new meaning or message” entirely separate from its source material,” it is hard to see how ‘artistic’ assessments can really be kept separate from strict legal analyses.

To your point on matters being better settled outside of courtrooms, I’d offer an alternative view — going to court allows for the development of jurisprudence in a particular area of law and (if things go according to plan) allow for the clear establishment of transparent rules. I mean look at this conversation we’re having right now — if the Warhol decision was privately settled, we would not have any insight into the legal position on artist copyright. You are certainly right that contemporary art is radically situational, but artist rights need to be protected as well, and the law provides an existing mechanism for that. From a practical perspective, mediation is not always a friendly process either. The relative bargaining power of each party is often rooted in a basic assessment of the legal position (i.e. What will happen if we go to court? Will we win or lose? Why might the other side be motivated to agree with me?).

And accordingly, “deals” are struck on this basis, with parties also having the leeway to take other practical considerations into account. So, what seems on the surface as a more “friendly” kind of settlement, may in reality, be just as hotly disputed, and with an assessment of the same kinds of legal principles that underpin public litigation in the courts. However, with closed-door mediation, outcomes and arguments can be kept private, and so arguably, the wider community misses out on the chance to learn from the details of the dispute.

ML: Not gonna lie, I am typing this without having read the brick above about the legal aspects of things! But my two cents about this is that I agree completely with Pauline about how Dorland comes off as just a disturbing acquaintance to have. While I can see how Larson too does not appear faultless in this debacle, I wonder if I’m more willing to cut her slack as a fellow artist. I relate the way that she’s lifted off Dorland’s open letter, to the way that Singaporean artist Mengju Lin has lifted texts that she encountered in her everyday life to include in her series of paintings in Deeply Softly Gently Tenderly, for instance.

Mengju Lin, Deeply Softly Gently Tenderly, 2021. Courtesy of the artist and Richard Koh Fine Art.

The texts in Mengju’s paintings are drawn from various sources, and may well come from email spam and signboards, or “from menus, from tombstones, from tweets”, as Larson puts it in her defense of how Dorland’s letter “wasn’t art… [but] informational”.

That it is a writer — unpublished, furthermore, if that matters at all — who has written the open letter does not make the open letter a piece of creative writing, just the same way as an artist might dabble in all manner of craft that do not reach the finished, resolved state of “art”.

It’s pretty much Larson’s argument when she says, “We get inspired by language, and we play with that language, and we add to it and we change it and we recontextualise it. And we transform it,” — and I agree wholeheartedly on this.

Now that Larson has edited the short story to omit the plagiarised portions of the text, shouldn’t the matter be resolved? Dorland has no claim on the larger concept of the story or kidney donation for that matter. Actually, I find it hilarious that she has pursued this contention so doggedly seeing as how it puts her in such bad light to be identifying with the white saviour character in the story. It just goes to prove that the themes that Larson has centred her story on are so relevant now that a white person’s tenuous grasp on reality is encroaching upon an Asian person’s creative accomplishments.

PG: Adding on to Michelle’s point, I wonder if the fact that the letter that forms the basis of Dorland’s complaint of plagiarism was one that she shared on social media makes a difference? Copyright law is not my area of expertise, but this article in the Singapore Law Gazette reflects on whether “the seemingly permissionless nature of the internet and social media platforms, combined with the breakneck speed in which users can download, alter and reshare content, have combined to create a semi-anarchic system where emergent norms constrain user behaviour to a greater extent than do legal and regulatory structures such as copyright law”.

Countless digital memes were spawned from this now-famous photograph of Senator Bernie Sanders by photographer Brendan Smialowski.

The subject matter of the article is digital memes and there are several other crucial points of distinction in this case, one of which is that Dorland’s letter was shared only with members of a private Facebook group of family, friends and fellow writers.

Yet I would ask if an argument can be made that Dorland, as a participant in the prevailing digital culture, with its pronounced focus on the production of self as an online persona, has implicitly consented to its being shared, reposted, appropriated, remixed and recoded without any right to complain? I have no definitive answer but it certainly adds another layer of consideration to what I personally choose to share on social media!

LWC: To come back to the interpersonal and the ethical: it’s tempting to say that Dorland should just let it go, once Larson made clear her story isn’t about Dorland, and made subsequent edits, or that Larson should have been kinder to Dorland — the title of her story is, after all, “The Kindest”. If only we could be less adversarial, if only we didn’t escalate — especially when it concerns matters of fairness and justness. That’s so much easier said than done. Yet that is precisely what an ethical practice in relationships and friendships entails. Try harder to be compassionate and kind. Even to people you don’t like. And especially to people who have hurt you.

PG: A great note on which to end this Roundtable, thanks Weng! And thanks, everyone for this lively and fascinating discussion.

 

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