Magritte and Fair Use

Boing Boing posted an article today about the "Magritte and Contemporary Art: The Treachery of Images" exhibit at the Los Angeles County Museum of Art (which I went to last weekend) about, in Cory

If the point of the exhibit is to show us the wonders of fair use, how can LACMA justify taking paintings in on terms that betray fair use?

Now, I have been to the exhibit in question, as well as many other exhibits that banned photography, and I have never seen it as conflicting with fair use.  Although it is not the case with the Magritte exhibit, a lot of museums when showing older work, do not allow photographs, or at least flash photography, not only because it annoys the other patrons, but because the light from the flashes can artificially age and degrade the work. (Some museums won't even let you take in pens; they will only let you take in pencils for fear of you making permanent marks to the work.) But more to the point of the article, big shows of famous artists are great opportunities for bootleggers to come and make nice copies of the work, and it becomes the collector's prerogative whether they want to allow photography or not.  It has less to do with fair use, and more with protecting the integrity of the work.  Artists make their living off of their work.  If people come in and take pictures of the work, and make copies of the work, thats money out of their pocket.  (And this does happen.  A lot.  Just check out You Thought We Wouldn't Notice)  So if they don't want photography, then that is a decision that we should respect.  Personally, I don't like the idea of people saying that work is either totally copyrighted or totally fair use; I think that it should be up to the individual artist to decide for themselves what they want for their work.  Thats why I like, and use, Creative Commons licenses: because they allow you to choose how much access to your work you want to allow, instead of the all-or-nothing approach. And moreover, a showing is not the place to be making a copy that you want to work with.  If you want to use another artist's image in your own work, and you need to work with the original, contact the artist, or in lieu of that the gallery or collector that has their work.  Requests like that are not uncommon at the gallery that I am at, and a lot of the time the artists, if approached by someone serious, are happy to work with them.  There are just safeguards that they have to put up in order to protect themselves and their livelihood.

In the end, I really don't see how the inclusion or exclusion of photography in an exhibit is a good bellwether of a work's fair use rights.  There are so many other avenues that one can pursue in order to procure a particular image that it all seems like a rather moot point.  I can see where someone from the outside, who's only exposure to art is in the museum setting, would be confused, (as condescending as that sounds) but the fine arts were able to thrive and have a free flow of ideas for hundreds of years without the aid of photography in exhibits, and I am confident that it can continue to do so.  Because for artists, it is not the photographic documentation, but the idea that is paramount.  And as long as those are not locked away, we can continue to dialog with each other, just as the Magritte exhibit presents.