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Can't a gay Batman get a break?

PinupOh, will the copyright madness ever end? D.C. Comics is going after a Chelsea art dealer, demanding that it cease and desist from exhibiting Mark Chamberlain’s series of "gay Batman" watercolors. As Kathleen Cullen of Kathleen Cullen Fine Art explained to Artnet, "D.C. Comics wants me to hand over all unsold work and invoices for the sold work!"

I hope she told them to make their own gay Batman watercolors.

Artnet has also received a cease-and-desist for hosting several images from the series on its website. Let's hope they have some spine and keep them put. As I've said a million times, corporations routinely churn out ceast-and-desists, when they have no real intention of following up with a suit. (Though, naturally, no one wants to be the outlier.)

Whenever I give my Illegal Art Exhibit talks, I usually mention that fine art is unlikely to draw legal threats from corporations: "If it's hanging on a museum wall, it's usually safe." But from the look of things, that may be changing. Fine art may still have an easier pass than works using popular media, but now all it takes is a search engine or a blog analyst to discover art like Chamberlain's.

Posted by carrie on 08/18/2005 | Permalink

Comments

AS USUALL THE FUCKING QUEERS HAVE TO FUCKIN RUIN IT FOR EVER ONE ELSE.BATMAN HAS NEVER BEEN GAY SO WHY IS HE BEING PROTRAYED GAY...MAYBE IT THE INSURCURITY THAT COMES WITH THE GAY PEOPLE...ME I CANT STAND GAYS AND NO IT HOMOPHOBIC WHICH BY THE WAY IS ANOTHER THE GAYS CAME UP WITH FOR PPL LIKE ME THAT BELEIVE MAN AND WOMEN WERE MADE FOR EACH OTHER

Posted by: larry | Aug 19, 2005 5:32:00 AM

that's a well educated and rounded opinion you got there larry!

Posted by: leery | Aug 19, 2005 6:01:44 AM

Larry, I suspect you were made for no woman on this planet.

Posted by: Lee | Aug 19, 2005 6:09:19 AM

larry: word for the day - neanderthal... oook it up...

Posted by: fumi | Aug 19, 2005 7:30:34 AM

larry: word for the day - neanderthal... loook it up...

Posted by: fumi | Aug 19, 2005 7:31:17 AM

Sound and well thought through argument Larry. I'm like you, but I hate niggers. But I'm no racist.

Hope the head injury is getting better....

Posted by: Sarah Cynthia Sylvia Stout | Aug 19, 2005 7:55:03 AM

"BATMAN HAS NEVER BEEN GAY"

Sorry Larry, as any hard-core DC comic collector knows, Batman has flirted with homosexuality on three different occasions:

Detective Comics #43, Sept 1940: Batman's new affiliation with Robin sparks a flashback to Wayne's youth when he attended the Gotham Academy for Boys. He and four other boys, with the aid of large rubber bands and a jar of cold cream, explore their sexuality. Many collectors believe that one of the boys was Harry Dent. (See DC #52).

World's Finest Comics #18, May 1956: Batman becomes fixated on seeing Superman naked and his proposition is cruelly rejected.

Batman #44, Nov 1968: Batman infiltrates a communist worker's organization but is exposed by the Green Arrow, who sympathizes with their cause. Forced to ingest LSD and rum, Batman generally acts silly and is totally out of it during an orgy. (I can't believe nobody took pictures!)

Of course, I won't even mention the plots of several issues of the Dark Night Returns as it borders on alternate reality, anyway.

Posted by: Fred X. Quimby | Aug 19, 2005 8:32:10 AM

Although I think copyright and trademark laws are skewed WAY too much toward the content owners, I can't see exactly why people would support the view that what this artist is doing is fair or reasonable. The Batman character, along with Superman, is the bread and butter of DC Comics and their subsidiaries. He has never been abandoned or orphaned and has generations of fans. Admittedly, I'm only a layperson, not a coyright/trademark lawyer, but it seems perfectly evident that the artist is using someone else's trademarked characters for his own profit, both monetarily and for publicity. This is not some out-of-print or ignored property, and I don't see the artist's use of this trademarked icon as falling within the realm of fair use or parody. SNL's "Ambiguously Gay Duo" was unquestionably taken straight (no pun intended) from the Batman and Robin mythos after all, yet it didn't actually use the characters in question to make its point.

Once upon a time we had reasonable copyright/trademark laws in this country, and maybe someday we will have them again. It seems to me that this issue falls suarely in the realm of common sense fairness. Chamberlain has made a business venture out of characters that others have, and *should* have, creative rights over.

Sure, if you are rabidly against any form of creative ownership, think that all corporations are the embodiment of pure evil, or think that gay iconography needs to be pushed into public view at any cost, this action by DC will probably have you frothing at the mouth. I believe that the vast majority of reasonable people will not view this controversy as anything other than a company acting to protect what it sees as its interests against someone who has, in fact, trespassed against them.

Posted by: chuck | Aug 19, 2005 8:59:00 AM

Larry you may not be a homosexual but, you are definitely "gay". It's a comic book about a rich guy who's into S&M, body building, rubber suits and giving fatherly advice to his youthful ward Dick.

OK, maybe Batman as a fictional character is not a homosexual but he, like you, is definitely "gay".

Oh and personally, I don't have a big problem with homosexuals; some are OK, some are assholes.

I just don't like people like you, who are definitely "gay"...

Posted by: Haywood Jahblome | Aug 19, 2005 9:02:40 AM

There shouldn't be any type of trademark case against this artist...

BECAUSE IT'S ART!!!!!!!!!!!!!!

Guess what... "Trademarked" images, logos, etc... have become a part of popular culture, and the basis of much of the art out there is commentary on popular culture.

I think these watercolors are great, precisely because of the kind of conversation it generates. Don't you think that was part of what the artist was doing? Knowing how twisted some people would get when their beloved Batman turned out to be gay?

Would Chuck propose that Andy Warhol get sued? Or how about the MILLIONS of other artists that use "trademarked" imagery in the artwork they profit off of...

Posted by: John | Aug 19, 2005 9:10:44 AM

Silly business...

Of course this is a protected form of expression. It barely even merits a news story. The gallery owners should (and likely WILL) keep the show and website up. The subject matter is unimportant. The fact is that "art" has proven itself to be bulletproof... as well it should be.

Also, Larry... you might want to step out of your closet full of tights every once in a while.

Posted by: The All-Knowing Voice Of Reason | Aug 19, 2005 9:25:52 AM

Actually, the fact that it is art is immaterial. ANY breaking of copyright is art, pure and simple as copyright is the protection of a particular physical manifestation of an idea, which in my book defines art as well. Trademark follows a similar route of logic.

Art arguments aside, though, DC has no case against this artist, as the way Batman is depicted in these images is clearly satirical, which is considered fair use of copyright. Depicting Batman as gay is clearly questioning the masculine image in popular culture and how that image relates to sexuality. That is Satire. The satirical use of copyrightable images is how Mad Magazine gets away with what they print.

This is one of the main problems with current corporate attitude toward copyright. It is easy for a corporate entity to send a cease and desist letter. Also fairly easy for a corporate entity to sue someone for copyright infringement, even if it is clearly fair use. It is often difficult for individual artists to spend the legal fees to go to court to prove that their use of the image is fair, so most of them back down, and who could blame them?

Posted by: JTony | Aug 19, 2005 9:29:51 AM

Where's Larry? Damn, he started off with such fury.

But on to the point: If the artist and the gallery can afford a lawsuit, they should encourage the holders of the Batman comic to file a suit. Images of Batman, lounging in "gay" shorts, or posed like a beefcake porn model, are clearly parody, protected by law. The test is: Would any reasonable viewer, looking at the watercolors, believe that DC Comics made this artwork? Would any viewer at the gallery -- where the artist is clearly identified -- mistake the parody for the original?

DC Comics, in the words of America's greatest cheerleaders, "bring it on!"

Posted by: Barton | Aug 19, 2005 10:22:28 AM

Who gives a flying frak about the legal bullshit or the "rights" of the gallerist, or the artist...freedom of expression my ass....this is cheesball capitalization of an icon.

I personally don't want to see Bats turned into a circuit queen - or Robin ass up in the air like a butt freak at Steamworks, or the West Side Club....

I keep my Batman and Robin fantasies to myself and so should the dipshit artist who did this....

Posted by: Corey | Aug 19, 2005 10:25:27 AM

"Would Chuck propose that Andy Warhol get sued? Or how about the MILLIONS of other artists that use "trademarked" imagery in the artwork they profit off of..."

Well, in the case of Mad Magazine, as mentioned by JTony above, no. Andy Warhol- again, no. Mad Magazine's function is to parody, which is clearly fair use. Despite JTony's contention that these paintings are parodies of Batman, I'm not certain I buy that. Parody is "a literary or artistic work that imitates the characteristic style of an author or a work for comic effect or ridicule." according to dictionary.com. That jibes with my understanding of parody as well. The intended effect of these paintings seems to be to evoke quite different emotions to me. They seem to fall well within the realm of erotic art, but parodies? I don't see it. Looks like the visual equivalent of slash fiction for profit to me. I fail to see parody or satire as the aim or effect of these works.

Warhol's Campbell's Soup paintings (I freely admit no particular knowledge of any other trademark issues surrounding Warhol) may actually break the letter of the law for all I know, but certainly don't rise to the level of something a company might reasonably take offense to. I know that my feelings of what constitutes "reasonable" bear no relationship to what the law says, but not being a lawyer, I can only judge the issue by what seems fair to me.

Frankly, I would tend to view this a little differently if this were only a single painting. I would be more persuaded that the artist was trying to make some sort of statement, whether or not I agreed with or understood what it might be. To churn out several such works using the same character in the same way strikes me as being more about commerce than artistic vision.

Should artistic speech be protected? Of course it should. But like every other right or protection we have enshrined in our tangle of laws, there are limits. That's why we have the concept of fair use to begin with-- to try and set boundaries that take the interests of all parties into account, both the artist who creates a work or character, and the artist who wishes to appropriate and use another's creation for their own ends.

Posted by: chuck | Aug 19, 2005 10:39:57 AM

That's right Barton. Who gives a fig about freedom of expression and all that crap in the constitution? What's really important is that corporations be able to whatever they want with impunity.

So... you're basically selfish and you want everyone else to shut up so that you can maintain your personal fantasy. Right Barton?

Get your own website hun.

Posted by: Brenda | Aug 19, 2005 10:45:42 AM

Thanks to the folks at nerdnyc.com for providing the proof that Chamberlain was right all along.

Posted by: Charles | Aug 19, 2005 11:38:47 AM

I thought Tom Forsythe's Barbie lawsuit set a precedent for this kind of artistic use -- maybe not full on legal precedent, but enough for DC to know they can lose. (Mattel had to pay Forsyth's $2m legal fees, I think.) http://talkleft.com/new_archives/007099.html and lots of other places.

Posted by: dbrown | Aug 19, 2005 12:20:48 PM

Gee, Larry. Point one for being the first to comment, but way to really argue for DC. it's so nice to see an all caps, completely uneducated, rife with misspellings argument such as yours. It makes the rest of us fags, dykes, and lib'rals really want to switch teams and come on over to yours.

Thanks for the education. ::shudder::

Posted by: bv | Aug 19, 2005 1:23:38 PM

Tom Forsythe's Barbie lawsuit was indeed precedent-setting; it was a federal district court decision. But, unfortunately, being in the right legally doesn't immunize one from frivolous threats and the hassle of defending against them.

Posted by: carrie | Aug 19, 2005 1:54:18 PM

You're all missing the real crime that was commited here --

BAD ART.

The paintings are ugly, poorly composed and uninspired. They're indefensible!

Posted by: z-man | Aug 19, 2005 1:55:01 PM

If people only knew the real lives of the superheroes, we could stop this senseless bashing. They're only human after all.

Well, except Superman. He's a dirty alien.

The Secret Files Of Jimmy Olsen Part 1 Part 2 Part 3 Part 4 Part 5

The Journal of Ephemeral Inspiration
We brought gum for everyone

Posted by: Editor, The J.E.I. | Aug 19, 2005 2:35:35 PM

Yeah, as if DC can complain about Batman and Bad Art. I mean, look at almost the entire Batman run in the 60's. At least the watercolors show a bit of style.

As for parody or satire, there is a subtlety to the terms that I believe Chuck is missing.

I point to the following item from http://encyclopedia.laborlawtalk.com/Satire -

"Satire is not exclusive to any viewpoint. Parody is a form of humor that imitates another work of art in an exaggerated fashion for comic effect, usually deriding the subject of the parody in the process. Although the techniques of satire and parody often overlap, they are not synonymous. Satires need not be humorous - indeed, they are often tragic - while parodies are almost inevitably humorous. Parodies are imitative by definition, while satires need not be. Humorous satires often base the humor on the juxtaposition between the satire and reality. The humor of such a satire tends to be subtle, using irony and deadpan humor liberally."

I'm no lawyer, but to me, this clearly fits both Parody and Satire, especially from a legal definition.

Posted by: JTony | Aug 19, 2005 2:41:34 PM

What is bad art?

If the paintings were pretty, well composed and inspired, would that make them "good art"?

If I were gay Batman, Robin and I would gangbang your pompous, snobbish ass, Z-Man.

Posted by: god | Aug 19, 2005 2:43:10 PM

I think they are beautiful and hillarious studies done in a medium that is excruciatingly hard to master. Bravo.

I wish I had $$. I'd get one!

Posted by: Dead Robot | Aug 19, 2005 2:58:45 PM

I guess I'm the only one who thought Larry was being facetious.

Posted by: Rachael | Aug 19, 2005 3:45:06 PM

Hey!! DC owns it. gay/straight batman pictures not authorized by DC get sued. Nuff said.

Posted by: TMu | Aug 19, 2005 11:03:24 PM

A Feb 2005 New Yorker Cartoon

Queering copyright, take two. Batman and Sponge Bob.

Posted by: zp | Aug 19, 2005 11:40:18 PM

Koons lost at the supreme court about these issues, and Warhol paid companies for product use.

Posted by: Anthony Easton | Aug 20, 2005 12:06:55 AM

It doesn't matter if you think it's good or bad art, or if DC doesn't like it. SATIRE and art of this kind which comment on society's views of popular icons are PROTECTED FORMS OF EXPRESSION. Period.

Everybody thinks they understand copyright law based on what their friends tell them. This ain't a case of it. Take it from someone who's sued a major manufacturer for copyright infringement- and WON.

Posted by: robert k. | Aug 20, 2005 10:11:47 AM

Koons wasn't specifically parodying the photo he appropriated; that's why he lost.

And Warhol didn't always pay, but he *was* savvy about how he marketed his work. Because Warhol (usually?) wasn't parodying goods or portraying them in a negative light (quite the contrary), Campbell's and others appreciated the attention.

Posted by: Charles Star | Aug 20, 2005 11:21:43 AM

Well, first of all, Batman is not gay or at least there's no evidence of course that doesnt mean he is straight. I'm not an expert so i cannot say if that image it's art or good art but i can say i like it. Using a trademark in a piece of art it's legal? well i think the author can use it cuz he's not trying to get somemoney of the trademark "per se" he is using the cultural concept to create something to make people feel something so i guess it's all right.

Posted by: Eduardo | Aug 20, 2005 3:32:02 PM

why is it that anyone who finds stirring chocolate with a meat-spoon or a woman trying to clap with both hands immersed inside another woman's cum-dumpster in poor taste is thought to posses an irrational fear of Bravo™?

it's not a phobia, it's common sense and a rudimentary understanding of human reproductive anatomy.

Posted by: jeff | Aug 20, 2005 6:27:50 PM

Batman is not gay, the 30's-40's he was credited as a "Creature of the night" then 50-60's gave the worst taste in Batman yet 80- till present show the REAL Batman, a dark vigalnte who's gretest weapon is not his gadjet but fear, Joker, a serial killer who lauges at death and Catwoman (Jeez did anyone think of her in this thread or Talia?)

Posted by: Tommy | Aug 20, 2005 7:13:56 PM

When you put it that way, Jeff, jamming a meat spoon in a cum dumpster isn't appetizing either. You managed to be both homophobic and misogynistic which is a nice twofer. You sure are edgy though.

Posted by: Charles Star | Aug 20, 2005 7:54:27 PM

Mr Star

Can you tell me more about the Koons, and what warhol paid for and what he didnt?

Thanks
ase

Posted by: Anthony Easton | Aug 20, 2005 7:58:01 PM

Anthony,

Actually, Charles didn't write that; I did. (I used his computer and forgot to change the autofill. Whoops!) Anyway, a simple google search can tell you everything you'd want to know (and more) about the Koons case. Search Google for Koons Rogers Puppies copyright and you'll be set.

As for Warhol, I don't know the specifics but you can read about his strategic handling of trademark issues in David Bollier's excellent book, Brand-Name Bullies.

Posted by: carrie | Aug 20, 2005 11:10:59 PM

Brenda,
I never post on these things, I just read them. But boy did your stupidity ever move me to do it. Before you trash someone for their opinion, make sure you understand what they are saying. Pull out a dictionary and study the syntax. Then maybe you won't ever again be sitting there with egg on your face.
Get your own website, hun.

Posted by: Joanie | Aug 21, 2005 1:59:33 AM

I AGREE WITH LARRY AND NO IM NOT JOKING.

Posted by: bog | Aug 21, 2005 2:02:36 AM

Joanie - I think that Brenda was actually referring to Corey, who posted right after Barton, so at a glance it could appear to be Barton's post.

Posted by: Charles Star | Aug 21, 2005 2:14:23 AM

Fred X. Quimby wrote: "I can't see exactly why people would support the view that what this artist is doing is fair or reasonable. The Batman character, along with Superman, is the bread and butter of DC Comics and their subsidiaries. He has never been abandoned or orphaned and has generations of fans."

In my perfect world, content creaters (and owners) should be protected by the copyright laws as they exist today, but only for around 15-20 years as the drafters of the Constitution intended. Mr. Quimby appears to be saying that they should have this protection forever -- or at least as long as they keep using the content. This deprives the rest of us from using the content to the benefit of society and depriving us from our own potentially valuable use of content that has become socially important.

P.S. Parody (making fun of the content) is protected. Satire (expliting content to make fun of something else) is not protected. In other words, if I rewrite the words to your song to make fun of the song itself, this is parody and the law allows it. If I rewrite your song to make fun of something unrelated like a political figure, this is unprotected, and I can face legal penalties.

Posted by: IANAL Yet | Aug 21, 2005 1:24:16 PM

Wasn't that Disney character orgy depicted in Paul Krassner's mag, the Realist, protected under the parody blanket?

Posted by: schmengie | Aug 21, 2005 5:45:37 PM

If I'm not mistaken, isn't DC Comics responsible for Pam Anderson's "Striperella"? And I seem to remember some VERY strong Girl on Girl references in that cartoon. All you homophobes and DC Comics need to knock off the double standard crap and just live and let live.

Posted by: KJB | Aug 22, 2005 6:15:35 PM

Ok I'm a huge Batman fan. I never got the slightest hint of any homosexuality, But about this article its only art DC get over it!

Posted by: shawn | Aug 23, 2005 12:01:16 AM

O also btw Stan Lee was responsible for striperella not DC or Marvel.

Posted by: shawn | Aug 23, 2005 12:03:11 AM

I guess Robins is a bottom.
The art dosent move me one way or the other.
Now maybe a picture of a batman doll submerged in a jar of urine or a picture of a guy in a robin mask and cape with a bullwhip coming out of his butt would go over better with dc

Posted by: Roosevelt | Aug 23, 2005 3:44:21 AM

how does that work again charles? when all else fails call names? well, at least i didn't attract the token "nazi" comment so prevalent amongst those who freely use terms like "homophobe."

i'm still confused as to how a simple distaste can equate to an irrational fear of, but then again, i'm not as emotional as some people...

Posted by: jeff | Aug 23, 2005 1:33:43 PM

DC should be more worried about the art in their OWN Batman books. While there are occassional stints by very talented artists, on the whole they often use the Batman titles as a dumping ground for their B- and C-team artists.

Clean your own art house, DC, before you start going after others. You do more harm to Batman's image with crappy stories and art than this artist's reference to the character ever will.

Posted by: Shyaporn | Aug 23, 2005 1:45:23 PM

Would you prefer I call you a misogaynist, Jeff? I'm OK with that.

Posted by: Charles | Aug 23, 2005 1:48:29 PM

DC should be more worried about the art in their OWN Batman books. While there are occassional stints by very talented artists, on the whole they often use the Batman titles as a dumping ground for their B- and C-team artists.

Clean your own art house, DC, before you start going after others. You do more harm to Batman's image with crappy stories and art than this artist's reference to the character ever will.

Posted by: Shyaporn | Aug 23, 2005 2:49:31 PM

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