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Bait & Switch- The Two Terms of Agreement on The New England Foundation For The Arts Website

Bait & Switch- The Two Terms of Agreement on The New England Foundation For The Arts Website

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In 2007,  I became aware of the unusual claim over artists property rights found in the Terms of Agreement for The New England Foundation For The Arts, which distributes grant money to artists, much of it sourced in the National Foundation For The Arts federal government program but NEFA is not a government agency- it is that new breed of entity known as the public-private relationship and partners with all the state art bureaucracies in New England, which also serve as channels of distribution for NEFA grants, but the state bureaucracies do not have a terms of agreement such as that found on NEFA.

When I read the Terms  of Agreement in 2007, I was shocked and brought it to the attention of the Boothbay Art Foundation whose legal council looked at it and expressed no disagreement with my view but dismissed it as a Terms of Agreement which would never stand up in a court of law.

Since then I have periodically been in email correspondence about the Terms of Agreement with NEFA but until very recently nothing changed. The most recent conversation was in October 2013 with The Maine Arts Commission concerning NEFA associating with The University of Maine to present a workshop on intellectual property rights.

NEA GRANTS

NEFA makes claims over intellectual property rights of work, not only published but also deep linked through its website. The statute for the University of Maine corporation, an instrumentality of the State of Maine includes claims to ownership of intellectual property rights. Both parties are examples of instances in which the individual creator of the works needs to be wary of claims that these two powerful institutions are asserting. The claims may or may not stand up in a court of law, but the institutions will likely have deeper pockets to fight a legal battle than the individual.

And so, as unpopular as it may be to question the ethics of organizations distributing grant money to the art world, I am publishing this here because I believe that we as a society based in freedom of the individual need to be questioning why NEFA is so obstinate about NOT changing the Terms of Agreement, which I have been questioning for seven years- and why suddenly after seven years there are now two terms of agreement- the one which has long been in place and a new one which satisfies the same standards of fair business that are found in Adobe and Google Term of Agreement.

The very existence of two terms of agreement, one fair by free enterprise standards, and the other claiming unjustified ownership of intellectual property rights is evidence that NEFA knows exactly what it is doing, which only becomes apparent to the general public if one examines the terms with the scrutiny of a detective. Most do not and so I am offering my own such examination of the double terms found on the NEFA website and submitting that it is the age old bait & switch at work.

The new and fair Terms of Agreement applies only to listing one’s information in the data base. When using the website in any manner- ever so minor- for all of an instant- constitutes agreement  to the Terms of Agreement which has been solidly in place since at least 2007- this according to the deeming authority of the powerful public-private relationship which is The New England Foundation for the Arts.

According to what NEFA so deems, one does not even have to click on the Terms of Agreement found at the bottom of the page to have agreed to its terms. All one has to do is make one search on their website and according to NEFA, that constitutes that you have agreed to the Terms for using their website. My advice- avoid NEFA at all costs. The same grants that they distribute can likely be found on the New England state art bureaucracy websites.  I speculate that the reason for the difference goes to the difference between laws regulating state and private entities. The public-private relationship offers a convenient route around both, perhaps not quite legal- but whose watching?

Hegemony

The age of the internet discourages  Terms of Agreements as a two way street. Online Terms of Agreements are presented on a take them or leave them basis , which works out fairly in many cases. Google and Adobe present fair agreements. The regional quasi non-governmental art foundation- the New England Foundation for the Arts is exploitative- During the course of a recent dialogue it came out that NEFA now apparently publishes two Terms of Agreement- one which displays when a person registers and another in the footer. The one which displays upon registration is new to my knowledge and much closer to the Google and Adobe models which limit the rights of the organization over what is published by participants to what is needed by the organization to provide the services offered. The terms of Agreement in the footer is the same as it has been when I  first encountered it in 2007. I discussed my objections  HERE

BOTH Terms of Agreement include the paragraph of the title Integration and Conflicting Terms. :  The only difference is that in the original agreement  the New England Foundation For the Arts site is identified and in the new agreement – the one which dispalys when one registers the words are “this site” , The web address for the new terms of agreement is http://www.creativeground.org/terms-use , making “this site” equivalent to creativeground.org which describes itself as “A project of the New England Foundation for the Arts (NEFA)”- the project being “New England’s Creative Economy Directory”

So it is fair to say that the new terms of Agreement is the ultimate governing contract for the directory listing, while the Terms of Agreement found in the footer of the  New England Foundation For The Arts website is the ultimate governing authority for NEFA.  The difference between the two is that one is a directory of names and addresses and the other manages “grants, convenings, online tools, and research”  and so it is fair to say that if one merely enters one’s information in a data base, one is governed by the Creative Ground Terms of Agreement. Whenever one uses the latter resources, one is governed by the NEFA terms of agreement – this of course being my layman’s analysis and interpretation, which is all most have when deciding whether to agree to the terms.

 

Creative Ground.Org Terms 

Commentary Compare this to almost the same paragraph in the Terms of Agreement for NEFA and you will find that there is an extra set of actions included in the NEFA terms which are“otherwise accessing or using the site ” placed after “by submitting a search request if you are only performing searches on the site, The latter sentence is almost identical to the one in the CommonGround Terms which reads BY SUBMITTING A SEARCH REQUEST IF YOU ARE ONLY PERFORMING SEARCHES ON THE CREATIVEGROUND SITE,  This is further evidence that the Terms of Agreement which opens on registration applies only to the directory listing for which there is only one function available- the search function of the directory- when using any another function such as searching for grant information, the NEFA Terms of Agreement apply, but for those not paying careful attention to all these details, they might believe that the Terms of Agreement that pop up when registering for the directory are the Terms of Agreement for the entire site, which is an innovative application of the age old bait and switch.
In the paragraph titled “Integration and Conflicting Terms, there is a reversal in the use of specific and general identifiers. Now the CreativeGround Terms of Agreement uses the general identifier “this site” while the NEFA Terms of Agreement uses the specific identifier for NEFA.  The use of general and specific identifiers is reversed in the NEFA Terms of Agreement for the same section- No Accident! When you go to the CreativeGround About Page, it clearly identifies Creative Ground as a project of NEFA and the page is signed by the The CreativeGround Team at NEFA.

 

BY CLICKING “I AGREE” IF YOU ARE A REGISTERED USER WHO CONTRIBUTES CONTENT, OR BY SUBMITTING A SEARCH REQUEST IF YOU ARE ONLY PERFORMING SEARCHES ON THE CREATIVEGROUND SITE, YOU REPRESENT AND WARRANT THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT AND THE CREATIVEGROUND (TM) PRIVACY POLICY, INCORPORATED BY REFERENCE HEREIN, AND EXPRESSLY AGREE TO AND CONSENT TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS CONTAINED THEREIN REGARDLESS OF HOW OFTEN YOU USE THIS SITE.  THIS AGREEMENT SHALL HAVE THE SAME LEGAL EFFECT AND FORCE AS A WRITTEN AND SIGNED DOCUMENT BY YOU.
IF YOU ARE A REGISTERED USER, YOU MAY BE NOTIFIED VIA E-MAIL IF THIS AGREEMENT IS AMENDED OR MODIFIED.  IF YOU ARE A USER OF THE CREATIVEGROUND (TM) SITE WHO ONLY PERFORMS SEARCHES ON IT, WE WILL BE UNABLE TO NOTIFY YOU OF ANY CHANGES.  REGARDLESS OF WHETHER YOU ARE REGISTERED OR NOT, HOWEVER, ANY USE OF THE SITE BY YOU AFTER ANY AMENDMENTS OR MODIFICATIONS TO THE AGREEMENT SHALL BE DEEMED ACCEPTANCE OF THE MOST CURRENT VERSION OF THIS AGREEMENT.
  • Integration and Conflicting Terms.    This Agreement, the Privacy Policy, and any other terms expressly incorporated by reference herein constitute the complete and exclusive statement and agreement between You and Us with respect to use of this site and supersedes any and all prior or contemporaneous communications, representations, statements, agreements, and understandings, whether in oral, written, or electronic form, between You and Us concerning the use of the site and Our service…. ( the rest is identical to NEFA terms)

 License.    By submitting any content to Our site, You grant to Us, until revoked by you, a royalty-free, non-exclusive, license only to use the content in a non-commercial manner as We deem reasonably necessary for the operation, administration and promotion of this site.

NEFA Terms 

Commentary The placement of  the words  BY CLICKING “I AGREE” at the beginning of the section below ( found at top of page), lends the impression that agreeing to the terms requires clicking “I Agree”. However a comma is used to separate  sets of actions, all of which constitute agreement to the terms, ie- “by submitting a search request if you are only performing searches on the site“- or by “otherwise accessing or using the site “ means that you have read and agree to the terms, which is to say, even if you have never clicked on the terms when you use the sites search function, NEFA is declaring that your action of using the search function is admittance to having read the terms and agreeing to them ! Why are they doing this? 

 BY CLICKING “I AGREE” IF YOU ARE A REGISTERED USER WHO CONTRIBUTES CONTENT, BY SUBMITTING A SEARCH REQUEST IF YOU ARE ONLY PERFORMING SEARCHES ON THE  SITE OR BY OTHERWISE ACCESSING OR USING THE SITE, YOU REPRESENT AND WARRANT THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT AND THE NEW ENGLAND FOUNDATION FOR THE ARTS PRIVACY POLICY, INCORPORATED BY REFERENCE HEREIN, AND EXPRESSLY AGREE TO AND CONSENT TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS CONTAINED HEREIN AND THEREIN REGARDLESS OF HOW OFTEN YOU USE THIS SITE. THIS AGREEMENT SHALL HAVE THE SAME LEGAL EFFECT AND FORCE AS A WRITTEN AND SIGNED DOCUMENT BY YOU.  IF YOU DO NOT AGREE WITH THE TCU, DO NOT USE OR ACCESS THE SITE.
IF YOU ARE A REGISTERED USER, YOU MAY BE NOTIFIED VIA E-MAIL IF THIS AGREEMENT IS AMENDED OR MODIFIED. IF YOU ARE A USER OF THE SITE WHO ONLY PERFORMS SEARCHES ON IT, WE WILL BE UNABLE TO NOTIFY YOU OF ANY CHANGES. REGARDLESS OF WHETHER YOU ARE REGISTERED OR NOT, HOWEVER, ANY USE OF THE SITE BY YOU AFTER ANY SUCH AMENDMENTS OR MODIFICATIONS TO THE AGREEMENT SHALL BE DEEMED ACCEPTANCE OF THE MOST CURRENT VERSION OF THIS AGREEMENT.

 

 18. Integration and Conflicting Terms. This Agreement, the Privacy Policy, and any other terms expressly incorporated by reference herein constitute the complete and exclusive statement and agreement between You and Us with respect to use of the NEW ENGLAND FOUNDATION FOR THE ARTS site and supersedes any and all prior or contemporaneous communications, representations, statements, agreements, and understandings, whether in oral, written, or electronic form, between You and Us concerning the use of the site and Our service. This Agreement, the Privacy Policy, and other terms expressly incorporated by reference shall be construed as consistent with each other whenever possible, but if such construction is unreasonable due to conflicting terms, the terms of this Agreement shall control. To the extent that Our site contains any content posted by Us, including but not limited to answers to “frequently asked questions” (“FAQs”), which may conflict with the terms of: (a) this Agreement, this Agreement shall control; and/or (2) the Privacy Policy, the Privacy Policy shall control.

 

 8. License. By submitting any content to Our site, You grant to Us a perpetual, unlimited, irrevocable, royalty-free, non-exclusive, assignable, and worldwide license, to make, copy, perform, publish, display, distribute, transmit, translate, modify, prepare derivative works and use the content in other works in any form, media, or technology now known or hereinafter developed for the full term of any rights that may exist in that content. You also agree to waive and never assert any moral rights that You may have in the content submitted to Us.

Few will want to take heed and perhaps there will be no price to pay for that but these kind of Terms of Agreement do not stubbornly persist, year after year, for no reason what so ever. I do not know if the NEFA terms of agreement ever pops up when one goes to use the functions of the NEFA website, but in my opinion the small change of wording in paragraph 18 had to be intentional and it uses the term “this site” to identify that the terms apply to CreativeGround.org. Why is “Creative Ground.org” not stated, corresponding to the way The New England Foundation For The Arts website is identified in the Terms of Agreement for the NEFA website? It is traditional in legal contracts to include definitions but there is no definition given for the term “this site“. I submit the answer is in service of non-transparency. Whenever there exists evidence of a concerted effort to protect non-transparency, the question “Why?” should be taken very seriously.-

The statement at the top of both Terms of Agreement is declaring that the user does not have to click “I AGREE” to have agreed to the terms- he just has to make any minor use the site to agree to the terms- as so deemed by NEFA and the part of the site that the user will make use of are governed not by the CommonGround.org agreement but by the NEFA agreement.

The new development is worse than before- most people will not take a close look. I had to take both paragraph 18’s and compare them side by side to figure out that there was a subtle but significant difference between them. Most users, when reading the Terms of Agreement that pops up when one registers will believe that is the agreement for the NEFA website. Fewer will click at the link in the footer. The section at the top which begins with “by clicking “I Agree” is likely to be skimmed and not carefully examined and so the full meaning will be missed. It is  quite a devious bait & switch that NEFA is pulling on the public which their non-profit foundation purports to serve.

This seems like a contract writ by Kafka and hardly something that would stand up in courts in the United States of America in which I have lived- but the USA of the past is changing rapidly these days and the Terms of Agreement to which NEFA has obstinately held tight- seems as if planned to fall into perfect step with a new world order.

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Koons &Clinton – What Were You Thinking?

Koons &Clinton – What Were You Thinking?
 
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ba·nal

bəˈnäl,bəˈnal/adjectiveso lacking in originality as to be obvious and boring.
“songs with banal, repeated words”

On November 30, 2012 , Jeff Koons, star of the blue chip art galaxy, was awarded the first United States Medal of Art by the Secretary of State Hillary Clinton. The main reason given for selecting Koons is that he is very famous and shows in top of the market art galleries. In the honorary speech, Secretary of State, Hillary Clinton recognized Koons for the time in that year when he spoke before an audience of 1000 listeners in China. According to Secretary of State Clinton Mr Koons “inspired cross-cultural appreciation and thought-provoking discussions among the city’s art community”. Inspire he did- but not exactly in the way Koons and Clinton fantasized

“One of the great characteristics of our country are our public-private partnerships. They are really at the core of how we do everything. De Tocqueville noticed that, but we’ve continued to perfect and increase our extraordinary partnerships between government and businessbetween civil society and academiaOur partnerships are really at the core of who we are and what we do. And this program could not exist without those partners. So on behalf of the Obama Administration, and especially everyone who works in our Diplomatic Corps around the world, we have been blessed by your generosity……

[Each of these artists] are living testaments to the timeless and unending human urge to create and connect,” she continued. “So they provide us with another language of diplomacy, one that evokes our universal aspirations as human beings, our common challenges, and our responsibilities for thinking through and addressing the problems that we face together……

Just think of what each of these artists means for people yearning to express themselves, that young artist living under a repressive regime, that budding painter who’s not quite sure where he or she fits in. Now, not all of these people will ever meet any of these artists, but they will learn about them and themselves, maybe even know something of their spirit and tap into a deeper level of inspiration, because they will encounter their works………”. Hillary’s amazing speech!

On July 29 2014, artnet news reported that a Chinese Company is producing copies of Koons work, which is to say the company is turning the tables on Koons, on Clinton, and on the USA.

All the while that the high end art elite in the western world was waxing prolific about Koon’s tribute- or was it a diatribe ?- to banality, someone was making the so called banal art work and someone else was making a living selling it. Strip down a layer of the glossy rhetorical surface and the subject matter of Koons art is not banality, it is making a mockery of cultural objects being primarily produced in China and other global low wage labor markets which are both  ridiculed and celebrated as banal by the intellectual elites of the western world. Is this what diplomacy has come to ?

As an artist, Koons taps into the philosophy of global capitalist marketing luxury to the wealthy while producing it in low paid labor markets. Koons doesn’t produce his own work in China- at least not yet. He hire hires USA workers to produce his astronomically priced work which resembles copies, made larger than life, of work that is often produced in international low wage markets and then sold in USA markets . Alternatively, Koon’s art is appropriated from ordinary things- such as his balloon dog, looking exactly like an over sized dog made out of a twisted balloon but in Koons case made out of stainless steel, a very expensive material. If Koons works are not direct copies of something else they look like they are trying to be so generic as to be devoid of any quality beyond commercialism.

In 2012 China, producer nation, has become wealthy and Koons and Hillary are courting China’s favors. Can Koons and Clinton really be surprised that those who are the makers of objects which Koons ridicules in his art will apply the same business strategy to the selling of the most expensive art in the world as they do for everything else- produce it for less! Are not the Chinese known for knocking off American designs and technology? How disconnected are Koons and Clinton from the culture of the audience before whom Koons delivers his speech?  Koons is the producer of the most expensive objects in the world which are often copies of work produced in China! Here in China now to inspire you! And Inspire he did ! Now the nation of the low wage laborer are making copies of Koons’s luxury art! How post-modern is that? Will the Chinese copies of the Koons copies of objects made in China succeed in deflating the value of Koons work? And then in turn will the deflation in the value of Koons work deflate the value of his imitators- creating the ultimate art world downward spiral? Will the appropriation of Jeff Koons imitative art work by those who are the objects of imitation be heralded as the next big thing in Post Modern Art ? Commercialism appropriating the the title of high art by producing it in less expensive materials and making more money by selling to to the masses than Koons selling it to the wealthy elite? – Just another international dialogue taking place in with one of the languages of diplomacy!

If the price of Koons’s work starts tumbling down, it seems apropos. The internal message coming from Koons work  is down and out despite it’s expensive price tag. It is down right cynical and out of internal inspiration. Jeff Koons has nothing to say beyond mocking the ordinary and the importance of cold hard cash. There is nothing at the center and no true development as an artist. Koons keeps on repeating versions of the same thought he had in the 1980’s and then sold that thought to the world of art & stock alliances- the alliance that built the eighties art market in which Koons rose to fame and wealth and Koons participated in both, working as a wall street trader before becoming a rock star in the arts. Now he is the anointed diplomatic ambassador of administration of The United State’s first rock star president !

The ugliest moment in Koon’s career was when he mounted a show of over sized photographs of himself and his Italian Porn Star wife, La Cicciolina having sex. If Koons ‘s work is cynical and empty- then this is the darkest chapel of the Koons religion. Koons is making his mark on the art world, canine style. Porn is as cynical and empty as the involuntary message of Koons’s work which speaks on its own and cannot be helped with carefully crafted rhetoric.

Recently, in Maine in one of the forums surrounding the Brand Company’s newest incarnation as art dealers, I said that I just didn’t get why huge oversize pictures of Jeff Koons engaged in acts of sex with his porn star wife and hanging on the walls of the Leo Castelli Gallery (actually it was the Sonnebend Gallery) was anything other than over sized pornography. It was suggested by Ed Beem, the author of the article, that I responded to Koons work that way because I do not understand it:

Jeff Koons is a marketing genius, but it is too easy to dismiss work you don’t understand. In the late 19th century, people thought Impressionists were no-talent poseurs and even the immortal Winslow Homer had his naturalistic paintings compared to muddy doormats. Koons made the market part of his art just as Warhol made production part of his. Most of the artist who show in Maine galleries create beautiful decorative objects. Only a handful are engaged in the eternal international dialogue that is the life of art.

 Mr Beem claims there is an eternal international dialogue coming from Koon’s work but all he can say about it is that the marketplace is a part of it- as if that were something so easy to miss for those uneducated in the proper thought process for understanding Koons’s high art!  But Beem is right ! There in the marketplace lies the smidgen of content in Koons work- but barely a smidgen and that is totally disconnected from the real international dialogue from the world responding to Koons’s cynical marketplace objects. Koons turned ordinary objects of commerce into fine art for no other reason than making it over sized and out of very expensive materials and selling it at a high price. The eternal international dialogue is reflected in the Chinese doing what they always do in international trade. The Chinese copy products made by others and produce and sell them for less. When Koons delivered his speech in China- that is the international exchange that he engaged. That’s the eternal international dialogue about art which has made the marketplace part (all?) of their art, Mr Beem. The eternal ubiquitous dialogue takes place in the real world of global commerce!

Mr Beem had concluded his own blog about the Portland Art Gallery with these words:

The true value of art lies in the making of it. Owning a work of fine art conveys a certain status, but, more importantly, it permits the collector to participate, albeit vicariously, in the ongoing search for meaning that is the work of all serious art.

Koons is one of those artists who prides himself on never touching is own artwork, instead hiring others to create it under his instructions. Like an aristocrat, Koons keeps the actual process of making the art at an arm’s distance. But Koons is a marketplace art star and that is what some in Maine mistake for “serious art”- in other words “investment art”- not just an object of beauty and meaning to the individual, which decorates the walls, but art representing a high end price tag ! Beem speaks for a faction that yearns to re-invent Maine as yet another extension of the New York City art market. Mainers need not buy into that. We have our own life style and values which intrinsically finds it way into the genuine voice of Maine artists living and working in the unique locality which is Maine. By being true to who we are, we can also be part of an eternal cross cultural dialogue- taking place in an entirely different galaxy than the one inhabited by Koons. A galaxy in which marketing is just a function that enables the artists to express a higher content- not where marketing has become the one and only content of art, which is the mark made by Koons in a high priced art world, gazing at its own navel and mocking itself.

RELATED POST: THE INHERENT VALUE OF MAKING THINGS

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