Just how free are the arts in America today?
Well, imagine that you are an aspiring digital artist and one day you receive an e-mail with video highlights of your cousin's fifth birthday party, distributed to family members by her proud and tech-happy parents. The clip prompts you to reflect that the feisty little girls at the party will inevitably grow up into sexual commodities in an increasingly commercialized society. You decide to turn that thought into a video montage.
You edit a minute or so of your cousin and her friends singing "Happy Birthday" together with a segment from a Victoria's Secret commercial and a few suggestive but non-explicit seconds lifted from an Internet porn site. Then, because art acquires meaning from context, you lug your equipment to the nearest shopping mall, set it up on a public sidewalk and project the finished work on the outside wall of a Victoria's Secret store for the edification of shoppers.
Here are a few things that could happen: (a) Lawyers for Victoria's Secret immediately present you with a cease and desist letter, pointing out that the use of the brand name, the advertising campaign and the product itself constitutes a violation of copyright; (b) lawyers for Warner/Chappell notify you that their clients own the copyright to "Happy Birthday" and that although performing it at a little girl's party is covered by "fair use," using it in a work of art and in digital media is another story; (c) the mall's security guards order you to stop projecting your images on private property, although you touch the store with only a beam of light; (d) the sheriff arrives to warn you that the public display of sexual material -- even sexual material that is freely available to anyone (including children) over the Internet and is, in any case, not nearly as anatomically explicit as a Calvin Klein ad -- violates community standards; (e) the gallery that was interested in including your work in a group show of video artists calls with regrets. Because of the unpleasant publicity you have attracted, the exhibition's corporate sponsor is threatening to pull out unless you are dumped. Therefore, you are dumped.
Now this hypothetical you, who may or may not be a worthy talent but is certainly working well within the range of today's styles and techniques, might well win every one of these legal battles -- if you could afford to fight them. Chances are you can't, so instead, you go home and start painting innocuous vases of flowers.
In the early 1990s, artists and their advocates held that the primary threat to their freedom flowed from political conservatives' attacks on the National Endowment for the Arts. Though the 1st Amendment blocks public officials from squelching art they find distasteful, it does not prevent the government from exercising some control over what art it pays for. Amid a political and artistic lightning storm that crackled around a few polarizing figures -- performance artist Karen Finley and visual artists Robert Mapplethorpe and Andres Serrano -- the NEA's budget shriveled into virtual irrelevance.
Today, the topography of free expression in the arts is infinitely more complex. Entertainment conglomerates lobby hard for the freedom to saturate the culture with references to violence and raunch, while corporate philanthropists such as AT&T; fund only projects they do not consider "divisive." The Internet is a freewheeling public bazaar of opinions, ideas and creativity, but it also is a private marketplace increasingly ordered and monopolized by large companies.
"There are upstream artists and downstream artists," says Andras Szanto, deputy director of the National Arts Journalism Program at Columbia University, who organized a conference in November on freedom of expression in the arts. "Upstream artists are those whose work gets appropriated. Downstream artists are those who absorb all of the material that flows to them from history. Of course, the same artist can find himself in both roles in the course of a single day."
Freedom in the arts depends on money, and while the total available pool varies with the vicissitudes of the economy, the number of needy creators seems to grow incessantly.
"The arts funding system is becoming more constrained," Szanto says. "An unprecedented number of arts organizations is vying for a shrinking pool of funding, and the ability to put your expression forth in this society depends on your access to these funds."
With the public spigots turned down to a trickle, the burden of funding the noncommercial arts has fallen increasingly on foundations and corporate philanthropies -- both of which are often squeamish about controversy.
Far more profoundly, the current artistic culture, which is replete with references, borrowings and parody, has collided with a corporate and legal culture that is bent on protecting intellectual property. If Andy Warhol were working today, he would be facing litigation from Campbell's soup, Church & Dwight (the makers of Brillo pads) and every corporation whose logo he appropriated.
"Virtually all art builds on previous work, either overtly or covertly," says Siva Vaidhyanathan, a professor of culture and communication at New York University and author of a forthcoming book on the issue, "Anarchist in the Library." "Because of that, we have to be careful when we impose a state-enforced restriction on the use of material. If we go too far, we will chill creative expression."
If the culture wars of the 1990s were a battle for public money, the current conflicts constitute a battle over the definition of public space. The sidewalk poet, the pamphleteer on the village green, the silvered mime in front of the Metropolitan Museum, the painter in Central Park -- these old-style expressers are squarely protected by the 1st Amendment. But today, the public forum is not necessarily a physical place. The town square, where an artist or self-appointed preacher could reach an audience of anyone who happened to be there, has largely given way to conceptual spaces.
To Cass Sunstein, a University of Chicago law professor, mass-circulation newspapers, magazines and broadcasters substitute for the commons. In a keynote speech at the Columbia conference, he asserted that the mass media have a responsibility to protect democracy by confronting a wide range of people with a wide range of sometimes discomfiting ideas -- ideas that can then become part of a common culture.
In practice, though, the story of cultural coverage by the mass media has been one of more and more words devoted to fewer and fewer subjects. The range of what art gets made may or may not have shrunk in the last decade; the range of what art gets widely discussed certainly has.
Justin Davidson is classical music critic and culture writer at large for Newsday, a Tribune company.