Not to mention that it was funnier when National Lampoon did it ("Batfart") around 1975.

Don't get me started about the feeble plagiarisms of Roy Lichtenstein.

Modern art is supposed to borrow from the work of savages, to bring some much-needed animal vitality. It goes back to Picasso and the African masks.

I'm just happy because I'd seen this picture about a week ago on a (now forgotten) German website, and it'd been driving me crazy trying to remember where. Patrick, I thank you and my brain thanks you.

what fannish websites are doing when they rework and repurpose pop images is "art" every bit as much as installations at the ever-so-cultural Whitney.

Go, Debra, Go.

There's a fine line between "fair use" and a "derivative work". For better or worse, the copyright system forces companies to be very aggressive about enforcing their intellectual property rights, lest they drift into the public domain.

As to whether fine artitsts get a pass, the jury is out. Jeff Koons rather famously lost a lawsuit over his sculpture based on a photograph by Art Rogers. As to whether either work is worthy of the term "art" is another story.

And didn't we see aged superheros (albeit not previously copyrighted ones) on The Tick?

"Rocket From The Sockets!"

For better or worse, the copyright system forces companies to be very aggressive about enforcing their intellectual property rights, lest they drift into the public domain.

I think that the case is increasingly "for worse" rather than "for better" -- and I say this as somebody for whom copyright is a bread-on-the-table issue. Art exists in dialogue with other art, and quotation is a part of that dialogue; to the extent that an aggressive defense of intellectual property rights inhibits artistic dialogue, it constitutes a malign influence.

While I'm no great expert on the law of intellectual property, I think the crucial distinction here is not that Gilles Barbier is doing "Art with a capital A" but that he's doing parody. There is more leeway to parody copywrited material than there is to simply "borrow" copywrited material.

Actually, quite a lot of the harrassment routinely directed toward fan sites and publications concerns usages which are obviously parody.

I think the crucial distinction is that Marvel Comics is less comfortable with the idea of confronting the Whitney Museum than they are with bullying their own audience.

I'm going to the San Diego Comicon International in a few days, and if I saw that piece in the art show, I would have judged it as passably entertaining fan art, but hardly anything original.

As shown with the King Velveeda case, parody means nothing when a copyright holder decides to crush someone with money.

Comics fans have little money, and ergo can be crushed by lawyers. Right and wrong don't come into it. Institutions like the Whitney Museum, even when they pass off mediocre fan art as avante garde French stuff, have money and have lawyers, and besides knowing that they'd win on the basis of parody, can write off the attendant legal expenses as advertising for the exhibition.

Marvel and DC also aren't suing the Whitney because they know they'd lose, and they don't want to establish a precedent that the fans can point to.

If the artist really wanted to pick a fight and say something controversial, he'd do a diorama of the Disnified Times Sqaure with Minnie and Daisy turning tricks while Mickey and Goofy shoot up in the alleyway. Not that such pictures haven't been done before, mind you, but if you're being given that sort of space to do social commentary, at least do something marginally scandalous.

Kip W traced the gag behind Barbier's installation to a 1975 National Lampoon piece. I'd go back even further, to a Mad Magazine piece from circa 1960, imagining what it would be like if all comics characters aged in real time, as they do in Gasoline Alley (and in For Better Or Worse today). I remember dentures falling out of Tarzan's mouth, and Dick Tracy's hearing aid impairing his use of the two-way wrist radio. Also, a grown-up Dennis the Menace announcing to delegates at the United Nations that he had put gum on all their seats. There must have been a super-hero there somewhere. I believe Wally Wood did the artwork.

Jim, you're absolutely right. I will go so far as amending my statement to say it was even funnier in MAD than in National Lampoon. Don't get me wrong: Nick Cardy's art on "Bat-Fart" was terrific, but Wally Wood was, well Wally Wood. "Superman, why didn't you catch the bullet in your teeth?" "WHAT teeth?" (Here it is: July '62, written by Earle Doud. Besides Superman, there's Mandrake, Tarzan, and Popeye -- all superheroes, sorta, especially Popeye.)

If the Whitney has any legal sophistication at all they would have either gotten permission from Marvel or had a trademark/copyright attorney do a significant review of applicable law prior to allowing this exhibit to go forward. If the exhibit doors are still open after a week, it would be apparent that they covered all their legal bases. (I worked with some good trademark attorneys for 8 years. They are a vicious bunch of people that have sharp fangs if your packaging or ad material is dancing around their trademarks.)

You can also see middle-aged and old superheroes in Alex Ross/Mark Waid's book, Kingdom Come.

Being that a lot of DC and Marvel books revolve around alternate worlds' storylines, I wouldn't say that aged superheroes are anything NEW to the comic reading public. But the comic reading public is much smaller than it used to be, and these ideas are new and avant garde to all the folks who stopped reading comics when they hit puberty.

I would imagine that they have received a c'n'd letter, and that the reason why is that French artists tend to be a little more robust in their behaviour toward such things than comic book fans with websites.

I would imagine that they have received a c'n'd letter, and that the reason why is that French artists tend to be a little more robust in their behaviour toward such things than comic book fans with websites.

French artists (and this was, after all, the point I was trying to make in the first place) have got (a) official high-art -- as opposed to mere entertainment or pop-cultural -- status, and (b) the financial backing of major museums and art galleries, not to mention private customers with money to burn. They can afford to take a robust attitude.

Anatole France, who pointed out that "the law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread" would not have been surprised by any of this.

In response to Madjayhawk - I've worked on a couple of exhibitions for a museum with a considerably lower profile than the Whitney, and rights and legal accountability are always a primary consideration; there's often an assistant curator whose sole job for the exhibition is tracking down rights to various elements (this was in historical exhibitions, not art).

The point, though, is that the Whitney didn't have to ask permission, because this art skates in under fair use. As Patrick and others pointed out, Marvel (and others) tend to ignore fair use -- despite the shrinking comics market, they still have enough money to outsue upstanding but impoverished fans. But the Whitney is just too big for them to bully.

The issue here is not the Whitney's actions, but Marvel's selective passivity.

Larry Brennan wrote: For better or worse, the copyright system forces companies to be very aggressive about enforcing their intellectual property rights, lest they drift into the public domain.

Actually, that's not true. It is possible in principle to lose the ability to claim damages in certain types of copyright infringement through the civil concept of laches, though I don't know if such a claim has ever actually been held. Even in such a case, the copyright would still exist, and still be enforcable. It is emphatically not true that lack of enforcement of a copyright will force a work into the public domain; the only ways a work enters the public domain are through the passage of time or by active renunciation by the copyright owner.

Larry might be thinking of trademarks, which are a completely different area of intellectual property. Trademarks can cease to be valid if infringements are not pursued.

Kevin - You're right, I was thinking of trademarks, and I'm no attorney. I don't even play one on TV.

For those in fandom who are concerned about enforcing their right to fair use - how about creating a legal defense fund? This could either scare away those annoying C&D letters or get some precedents established.

For those in fandom who are concerned about enforcing their right to fair use - how about creating a legal defense fund? This could either scare away those annoying C&D letters or get some precedents established.

Well, there is The Comic Book Legal Defense Fund, but they might be a bit gun-shy after the brouhaha surrounding the King Velveeda case.

The issue here is not the Whitney's actions, but Marvel's selective passivity.

Selective passivity will cause trademark defense problems down the road. A company, from my understanding, has to contest every infringement or else be in danger of losing TM protection. That is why your waiter asks if Pepsi would be okay instead of Coke when you ask for a coke. Coke must have enough people going around posing as customers that restaurants fearing TM infringement lawsuits train their staff to say that. Coke is Coca-Cola not Pepsi and they will sue. At the drop of a hat I understand. Go look in a 99 cent Store sometime wearing a TM attorney hat. The store is a TM attorney's dream come true. Everything in the store is a knockoff of a major product with packaging that is virtually identical to the real stuff's. Stuff like Jillette Shaving Cream.

The company I worked for, a large chemical company, sued a very small company out of business business because they were using the name of one of our products. The president of the company was actually crying on the phone. It was their major product. They had to know what they were doing when they named their product but obviously didn't run it by a TM attorney. If my company had not done that, as cruel as it was, when we had a major fight later with Purina over the same TM then we could have been in a bad defensive legal position. Purina would have known we did not contest that mark. Corporate TM attorneys spend a lot of time and effort looking under every rock on the TM landscape.

If Marvel let Whitney get away with illegally misusing their TMs just because Whitney had enough assets to fight them I would be shocked. Usually the size of the beast does not matter to TM attorneys. We were bigger than most companies. A lot of the companies we sued however were not without significant assets, but it didn't matter. We went after them. They were infringing and we had to contest. We won outside of court in one case involving a another large corporation. They made huge concessions and changed their packaging and advertising at a big expense. The product had just been rolled out. I bet some TM attornies heads got the axe at that company. Poor poor advice. They gambled and lost. Big time. Anyone attending the first meeting between TM attorneys from both companies could tell from the room's atmosphere 5 minutes into the meeting that they had lost. It was a nice celebration party we had afterwards.

My company was involved in another interesting trademark battle. We were using another company's trademark under some strick rules as to how and where the trademark could be used. We violated the rules. I think we had 4 attorneys on the inside working on this case and no telling how many hired guns and corporate attorneys in other divisions involved. The amount of time and effort that the project consumed was staggering. We lost. We paid a huge fine (10s of millions) and lost the use of the trademark. So our company bought out the other company to get that trademark. A two billion dollar deal believe it or not. One stinking road sign on an interstate next to corporate headquarters that violated the rules got the suit rolling. A TM attorney for the other company just happened to notice the sign during a trip. I told my attorney friends they should write a book about it.

Sorry to have rambled on. TM law is fascinating. When I come back in my next life I will be a trademark attorney. It will be tough to do because I think only snakes get to come back as attorneys. I might have to be a snake first.

i worked in mainstream comic books for 7 years and honestly i cant think of who in there right mind would sue Gilles Barbier or the Whitney for the most expensive advertising marvel and dc has ever had that they didnt pay for.

i sure marvel/dc dosent mind a little free pub

the piece dosent degrade super heroes
they're not portrayed in any bad context
they just got old
thats LIFE

All pop culture gets old and become usless

and yes - its been done and done again
national lampoon, coop(foofighters poster)
mavels kingdomcome ect. ect.

but lets face it - Gilles Barbier did it at the Whitney!!!!!!

Nathan Cabrera
im a sculpter not a writer

GOOD