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Did Richard Prince's Appropriation Harm Cariou Market?
May 23, 2012 10:43 AM   Subscribe

Prince v. Cariou, Round 2: Money Talks Prince v. Cariou oral arguments were heard today by a three Judge panel of the 2nd Circuit Court of Appeals. In many ways, the future of appropriation art (and Google’s image search, possibly) rests on the outcome of this case. And if today’s arguments are any indication, neither side is going to go down without a fight.

Background:

On March 18, 2011, Manhattan Federal Judge Deborah Batts ruled against Richard Prince and the Gagosian Gallery, and in favor of Photographer Patrick Cariou. Ruling here (PDF)

No transformative element:

After noting Prince’s testimony that “he didn’t really have a message” and did not attempt to comment on any aspects of the original, the judge ruled that “there is vanishingly little, if any, transformative element.”

Destroy and hand over the work:

In her ruling, the judge demanded that all works and materials relating to Prince's "Canal Zone" be "deliver[ed] up for impounding, destruction, or other disposition, as Plaintiff determines," and that the defendants "notify in writing any current or future owners of the Paintings of whom they are or become aware that the Paintings infringe the copyright in the Photographs, that the Paintings were not lawfully made under the Copyright Act of 1976, and that the Paintings cannot lawfully be displayed." [emphasis mine]

Highlights from today's oral arguments:

The liveliest moment in this morning's proceedings came when the panel asked Daniel J. Brooks, counsel for Cariou, whether the injunction to destroy the works was in the public interest.

"It seems like something that would appeal to the Huns or the Taliban," Judge Parker observed.

Brooks pointed out that his client's father was in the French Resistance and that he does not support destruction of any artwork, which is for him redolent of Nazi bookburning.

"The court," Josh Schiller of Boies, Schiller & Flexner, Prince's counsel, later observed, "did not invent the injunction."


and

The case also deals with whether Cariou's market was harmed by Prince's paintings. The judges seemed unsympathetic to Brooks's claims of a damaged market.

"Bringing up the market is a clear loser for you," Judge Parker said to Brooks, who confirmed that Cariou's prints sold for a few thousand Euro, while Prince's paintings sold for millions. "You sold to a totally different audience, you've admitted that not many of the books were sold, you sold them out of a warehouse in Dumbo, and that the book was out of print. Prince was selling to a wealthier crowd, and on this side of the river." The allusion to a more elevated marketplace in Manhattan brought laughs from the courtroom.


Of particular interest was the filing of a Amicus Curiae Brief by the Andy Warhol Foundation. Brief here (PDF)

more here and here
posted by snaparapans (95 comments total) 5 users marked this as a favorite

 
Can someone point out what exactly the art in question was?
posted by rebent at 11:00 AM on May 23, 2012


What is the case about? I read the first link to the artinfo blog and it, and this post, assume you know why Prince sued Cariou. I don't.
posted by nooneyouknow at 11:02 AM on May 23, 2012 [3 favorites]


Aw, I was hoping this was about Prince Charles being attacked by a caribou. He is in Canada, after all...
posted by Sys Rq at 11:06 AM on May 23, 2012 [5 favorites]


Can someone point out what exactly the art in question was?

Here's some.
(nsfw)
posted by neroli at 11:07 AM on May 23, 2012


Wait. So it's okay to knock off somebody else's work if you keep it in a different price bracket?
posted by thecjm at 11:08 AM on May 23, 2012


neroli: "Can someone point out what exactly the art in question was?

Here's some.
"

WOW - ok, NSFW next time please!
posted by rebent at 11:12 AM on May 23, 2012 [1 favorite]


No, only if you do it on the intarwebs.
posted by happyroach at 11:13 AM on May 23, 2012


rather than explain the issues surrounding fair use in art *again*, here's a link to a related case that was discussed on metafilter previously. The issues surrounding fair use and appropriation are discussed pretty thoroughly in the comments.
posted by stagewhisper at 11:14 AM on May 23, 2012


I saw this for a second and thought it was about Minneapolis Prince vs Manitoba Caribou
posted by Damienmce at 11:17 AM on May 23, 2012 [2 favorites]


Also, I might add it's complicated (hence the topic of post we are commenting on) and decided in the courts, so drive-by snark really seems to entering RTFA territory.
posted by stagewhisper at 11:17 AM on May 23, 2012 [1 favorite]


It's interesting, because in hip-hop they call this sampling and artists that want to do it (at least on recordings that they sell) need to get permission from rights holders and pay royalties. In one way, this seems fair to the original artists being sampled, but on the other hand it ended the golden age of hip-hop.
posted by snofoam at 11:20 AM on May 23, 2012


not a big deal but it's the 2nd Circuit not the 9th Circuit
posted by facetious at 11:28 AM on May 23, 2012 [1 favorite]


Aw, I was hoping this was about Prince Charles being attacked by a caribou.

I was thinking it was about this Prince.
posted by EmpressCallipygos at 11:41 AM on May 23, 2012


Here's some.

So it's collage, the only art form that was actually "invented" in the 20th Century. Isn't it time to legalize it? Or is it like marijuana -- a threat to the powers-that-be? (ie: it makes people think bad thoughts)
posted by philip-random at 11:41 AM on May 23, 2012 [1 favorite]


t's interesting, because in hip-hop they call this sampling and artists that want to do it (at least on recordings that they sell) need to get permission from rights holders and pay royalties. In one way, this seems fair to the original artists being sampled,

a friend of mine (now a lawyer and always a hip-hop fan) used to argue back in the late 1980s that original artists should never be allowed to deny use of their work for sampling purposes. Because sampling was collage art, and no art should ever be illegal. But he also argued that some kind of basic contract should be drawn up (dead simple to implement) wherein if you wanted to sample somebody's work, you filled in a few blanks and

A. alerted them to what you were doing,
B. agreed to pay them a fair percentage of your royalties etc.

Still makes sense to me.
posted by philip-random at 11:45 AM on May 23, 2012 [5 favorites]


I've followed it a bit, and these developments are interesting...

And yes, it's collage, but there are non-trivial questions of what constitutes a derivative or child work, when royalties or licensing or good/bad faith come into it, etc. Obviously we are entering a period where the traditional valuations of media are no longer meaningful, having to do largely with scarcity and difficulty of transport.

As philip-random says, there's still a certain amount of responsibility involved in the acknowledgement of the original art, whether it's monetary or just making it clear that what you've done is built from things you didn't create. And just so I'm clear, I'm not really a fan of "remix culture." Subversion and imitation and so on are very important to art, but not every act of remixing or sampling or 'collage' is subversive, constructively imitative, or any of the other positive aspects. Just as not every oil painting is a masterpiece, not every mashup is a brilliant recontextualization. Sometimes it's just shitty art, made by a lazy person aiming to make a buck, as I think is the case here.
posted by BlackLeotardFront at 11:52 AM on May 23, 2012 [1 favorite]


Thanks for the link to the Warhol Foundation brief, snaparans. It's interesting -- they may be Amicus Curiae, but they're not exactly disinterested in the outcome.

I have to agree that the market argument of Cariou's is a stinker. If the point is that buddy can't take the photographs without credit and/or compensation, then the open market value of the pictures is pretty much irrelevant. If you can't take it, you can't take it, no matter what it's worth.

Similarly, adhering to the injunction to destroy the works is also a stinker. It's an easy concession point, and one which would vastly improve Cariou's claim by getting rid of something that smacks of vengeance. Simply play the nice guy, say that you're only after credit and/or compensation, which is what the whole thing should be about, anyway.

And yes, I'm on Cariou's side in all of this. Appropriation or sampling is one thing, but just using the material wholesale without credit or compensation is quite another. Prince used an awful lot of Cariou's stuff in this series, way more than a mere sampling, IMHO. I see a wrong done to Cariou, but I'm not sure the Courts have rectified it in the best way. YMMV.

posted by Capt. Renault at 11:57 AM on May 23, 2012


It would seem that the biggest problem is determining fair use, and worse, whether the derivative work is valuable beyond the prior art. It would seem obvious, for example, that when the Bomb Squad used a dozen samples in a single Public Enemy song to create something that sounds nothing like the source material, that they are essentially creating something totally new that happens to have a wide variety of pre-existing source material. Conversely, P Diddy sampling an entire song is totally derivative, and also stupid, although it would presumably be difficult to prove in a court of law.

With regard to these paintings, I'm not sure. The paintings are more involved than just the photos. On the other hand, the photos are clearly a significant part of the work, and the work couldn't exist without them. To me, the crucial difference is that Prince seems to be using them for their aesthetic value, rather than a specific symbolic value. I mean, it's not like he's using the photo of Jack Ruby shooting Lee Harvey Oswald to make some sort of statement.
posted by snofoam at 12:14 PM on May 23, 2012 [1 favorite]


Upon further consideration, even if Prince is a schmuck, the court favoring Cariou would seem to be more likely to hurt future artistic expression than vice-versa.
posted by snofoam at 12:19 PM on May 23, 2012 [3 favorites]


Some background on Richard Prince.. He was most famous, in the 80's for his cowboy series, where he appropriated images ofMarlboro Men usually on their horses, from Marlboro ads.

The current case revolves around Richard Prince rephotographing a number of photographs by Patrick Cariou of Rastafarians from his monograph Yes Rasta (2000)..

Prince blew up the rephotographed images and collaged them into large paintings (NSFW). Prince never asked Cariou to use the photographs because he believed his appropriation fell within the concept of Fair Use. Cariou disagreed and claimed that he was monetarily harmed by Prince's appropriation of the work.

Prince came across as cocky to the Judge because he did not argue that his use of the works were transformative, which is key to Fair Use. Prince, when asked, simply said that he was not commenting on Carious photographs or Rastifarian culture, but sought to pay homage to Cézanne, de Kooning, Picasso and Warhol and other artists. . The choice was arbitrary and in selecting images for his work copyright played no part. He chose pictures to appropriate simply because he liked them. I think that this pissed off the Judge big time, and she wound up making a bad decision.

Rather than being arrogant, which is what many believe Richard Prince's remarks were, I believe that Prince's remarks were principled. He could have pointed out how he completely transformed Cariou's photographs by collaging them into paintings, which would seem obvious to any normal person looking at the original photographs and Prince's paintings. But he did not and rather took a more interesting stand about making art in today's culture.

And quite frankly, I think Patrick Cariou's has benefited from Richard Prince, not so much the other way around.
posted by snaparapans at 12:21 PM on May 23, 2012 [7 favorites]


Remember this is big bucks blue chip appropriation. In 2007, Prince set a record price for any photo when his "Marlboro Man" was sold for $3.4 Million at auction. It is just a photo of a Marlboro ad (scroll down to 2007). His other paintings (basically copies of pulp novel covers) sell for $6 Million and up.
posted by charlie don't surf at 12:41 PM on May 23, 2012


He could have pointed out how he completely transformed Cariou's photographs by collaging them into paintings, which would seem obvious to any normal person looking at the original photographs and Prince's paintings.

Idunno, snaparapans. "Completely transformed"? "Obvious to any normal person"? I guess the differences appear much stronger to you than they do to me. I may be missing something here, but the changes don't appear that substantial in the limited selection I've seen. My reaction has been (and so far remains) "that's it?"

I would also suggest that whether Cariou has benefitted from Richard Prince's appropriation is irrelevant to whether Prince had a right to use those images in the first place. That 'merely' goes to determining damages, if it's applicable at all.
posted by Capt. Renault at 12:47 PM on May 23, 2012


charlie don't surf :Remember this is big bucks blue chip appropriation.

yeah the full value of all the works from Prince's Canal Zone, which are at the center of this case, are probably in excess of $20mil.

Of course if you or I made those paintings Cariou would never sue or even know about it... well, I guess I should just speak for myself.. lol
posted by snaparapans at 12:48 PM on May 23, 2012


Capt. Renault: I guess the differences appear much stronger to you than they do to me.

Well I was at the opening of the exhibition and went back to see the paintings again without the hubbub of a celebrity opening... The content of the paintings are a totally different kettle of fish, than the Photographs in Yes Rasta. Sure the photographs are identifiable and there would be little difficulty for a normal person to match each collaged images to their respective images in the book, but Cariou's pictures and Prince's paintings are about as different as two artworks can get, imo.

Cariou was documenting Rastas for 10 years or so.. he may have known his subjects, or not, but the images seem sincere and generally a good representation of Rasta and photographic portraiture in general.

Prince's paintings are a crazy mix of abstract expressionist painting, sexual themes, and wild composition.. I would agree with Prince, that they have nothing to do with Cariou and lots to do with DeKooning et al.. So in the end Cariou's photographs are at best elements in a still lifes
which aim to ask entirely different questions than Carriou asked in the making of his work.
posted by snaparapans at 1:01 PM on May 23, 2012


I saw this for a second and thought it was about Minneapolis Prince vs Manitoba Caribou

Strangely enough, The name Caribou came about because Handsome Dick Manitoba thought it was trademark infringement and rather than fight it in court, he changed his name to Caribou.

As for this case, Prince changed almost nothing. If the pixel art "Kind of Blue" was out of bounds--which appeared to have been drawn by hand in a completely different style--Prince's claim to "Fair Use" has even less merit in my mind.
posted by Hoopo at 1:35 PM on May 23, 2012


Hoopo: As for this case, Prince changed almost nothing.

In a comparison of one of the paintings where Richard Prince made, perhaps, the least amount of changes here, I can't imagine anyone honestly talking about each image and coming up with anything remotely similar regarding their respective meanings as artworks.

The change in meaning is quite remarkable given that Prince has done so little to alter the image... (not counting the scale which is not obvious in the above comparison, as Prince's painting is relatively enormous.)
posted by snaparapans at 2:19 PM on May 23, 2012


The key seems to be if the art is "transformative", which (I hope) doesn't simply mean the photos need to be "messed with enough". There's the argument that simply putting some porn photos in a gallery could be considered transformative by the different message and intent. In fact, that was a whole artistic movement (i.e. Duchamp's Fountain). Was that entire artistic movement illegal?

Because Prince (stupidly) decided to not argue that his art was transformative, the outcome of the trial was affected, but I don't think that should have great bearing on the fundamental understanding of copyright law.

However, if you're going to buy into the argument that taking some crap and putting it into a museum can be transformative, then you also have to allow that it can work in the other direction. Which means taking a Louis Vuitton purse and making a cheap knockoff for Target could be arguably transformative (a message about the nature of brands perhaps?) I don't think that would be an easy sell, but let's say you made a perfect, handmade clone and sold it on Etsy as a commentary on the inflated prices of lux brands, I think you could (and should) be able to argue that.

Which makes me feel like there is a very complex relationship between art (the content) and art (the intent) inherit in the word "transformative." Interestingly, I personally think the actual content of art should be almost irrelevant in a legal context, since "what percentage of a song was sampled" or "how modified was the photograph" doesn't get you very far.

In most cases, it's a pretty obvious and natural line for normal people. Is the art a knockoff? Then it's illegal. Is the art something new and interesting and bought because of who made it and because of its different message and intent? Then I think the art should be legal, no matter how much of the content came from someone else's work.
posted by lubujackson at 3:08 PM on May 23, 2012


I'm not seeing a big change in meaning, but I'm not really familiar with Prince's iconography. To me it looks like "Now he's a rock and roll Rasta LOL Bad Brains"
posted by Hoopo at 3:43 PM on May 23, 2012


There's the argument that simply putting some porn photos in a gallery could be considered transformative by the different message and intent. In fact, that was a whole artistic movement (i.e. Duchamp's Fountain).

You just compared a fine art documentary photographer to a pornographer.

I don't think you know the slightest thing about Duchamp's Readymades and what they meant.
posted by charlie don't surf at 4:05 PM on May 23, 2012


What? Read the comment again. That's not in any way a direct comparison, and Readymades did indeed open the door to context reframing meaning, and from there appropriation as a valid technique for shifting meaning of the existing objects/images by introducing them into new contexts or works.
posted by stagewhisper at 4:14 PM on May 23, 2012


There is a huge difference between recontextualization and appropriation. Readymades had almost nothing to do with either of those concepts.
posted by charlie don't surf at 4:19 PM on May 23, 2012


Dude, Readymades opened the door for appropriation. This is basic art history 101 stuff. Really, if nothing else the years I invested in my Advanced Hobby Degree allows me to make this claim with some certainty.
posted by stagewhisper at 4:29 PM on May 23, 2012 [1 favorite]


There is a huge difference between recontextualization and appropriation.

Not if you didn't go to Art School (or don't hang with those who did). Because both are words that have little (appropriation) or no (recontextualization) meaning for so-called normal folks. Which is a big part of why this kind of stuff is so culturally complicated. Because from a pragmatic eggs-is-eggs level, it really does look exactly like stealing. In fact, there are many who have appropriated and/or recontextualized who argue that we should just call it stealing (Peter Gabriel and Pop Will Eat Itself come instantly to mind) and then engage from there (ie: argue why, in the context of cultural discussion, stealing should be not just condoned but encouraged).
posted by philip-random at 4:40 PM on May 23, 2012


Dude, Readymades opened the door for appropriation. This is basic art history 101 stuff. Really, if nothing else the years I invested in my Advanced Hobby Degree allows me to make this claim with some certainty.

I guess I was wasting my time taking art history classes at the International Dada Archive.

Readymades were about equating the decisions involved in the design and production of a purely functional, machine made object, with the aesthetic decisions involved in the production of visual art. It is about "non-retinal art." This has nothing to do with appropriationism. It is not about putting non-art objects in an art context. It is a declaration that there is no context.
posted by charlie don't surf at 4:50 PM on May 23, 2012


Hoopo: I'm not seeing a big change in meaning, but I'm not really familiar with Prince's iconography.

Well, maybe I can help you to see a bit more than you are seeing at first and second glance, Hoppo.

I don't think that you really have to know much about Prince's work to understand the basic differences here. And I do understand your position because it is natural for us to look for similarities in two things in order to categorize, so I am going to try to lead you into seeing in a different way.

The most basic difference about the two images, apart from scale, is that Cariou mass produced this picture in a book from a series of black and whits photographic portraits of Rastas. In this particular reproduction of Carious photograph (from a book) a Rasta is standing in the woods in three quarter view looking directly into the camera with intensity. The photograph is typical of a documentary type photograph: quite beautifully printed with many conventional formal elements that enhance the figure and call attention to the skill of the photographer.. For instance, notice the highlighted log to the right of the man's which mimics the curve of his arm. This is a typical formal device using repetition to draw the viewers eyes to the subject. The grey scale goes from deep black to pure bleached white with lots of grey tones in between. Another formal device that enhances the edginess of the picture is the placement of the Rasta's left side hair which dangles down the picture frame, sharply dissecting the image in half. This device creates tension pulling you away from the main focal point which is the Rasta's eyless stare.

Contentwise it is a natural man, fit, in touch with his animal nature somehow posing in the middle of the woods as if he was rudely stopped from hunter gathering or something like that...

All the questions about what this image signifies are unconscious as it were.. naive..the photographer wants us to notice that he is not in getting in the way here but creating a window where we can look at a beautiful natural body from a safe distance.. the picture is not a critique about photography, mass production, markets, art or any of these things. It is just a honest picture by a sincere fine art/documentary photographer carrying out a 10 year project. That is not to say that the photographer is an idiot, but more that the body of work is conventional and not very complex.

Now to the Prince Painting. Well, hard to tell from the link but the painting is large, almost life-size, maybe even life-size, I can't remember... and it is a painting, unique, not mass produced. The scale stops you from having any safe distance to casually gaze. All the wonderful delicate black and white tones are squashed out, replaced by an ugly purple tint. After being confronted by the in your face scale, the thing that slaps you in the face is the pasted on color guitar and blue ellipses that act as an mask on his face. Now the image becomes very colonial African, is because of the mask and very rock and roll because of the guitar.. Odd that it looks like a white guys hands.. no?.. And, clearly this is no longer a photograph of a Rasta in the woods, but a painting about a photograph of a Rasta in the woods crudely altered with mixed metaphors. The alteration is very self conscious, and quite critical. Prince's painting is self-referential, posing questions about contemporary imagery and reflecting on the history of famous male painters, while the original photograph strives to be a primary window into reality, a document.

So to sum it up Prince rips us out of the role of voyeur safely gazing at a timeless and cozy world of Rasta, and propels us into the shockingly raw, very self conscious and uncomfortable world of now, in your face contemporary art. And keep in mind, most of the other paintings that are in the series are extremely NSFW, which adds another huge layer of context.

Anyway I hope that I was able to help you see the big change in meaning between Prince's and Cariou's work. Were I a better writer I would have used less words in my attempt to help you see.
posted by snaparapans at 5:22 PM on May 23, 2012 [1 favorite]


Not an art historian of any sort but at one time a semi-pro photographer -- I know that if I walked into an art gallery and saw a collage that incorporated an iconic image of mine I'd probably be flattered and understand that it was fair use, but if I saw an entire exhibit based entirely on one themed shoot I'd done, even if cut up and rearranged a bit, with no input from other source artists and no attribution or compensation, I'd be fucking pissed.

I don't think this is a complex thing and I think the first judge is right. Had Prince spread his inspirations around or made the images less recognizable it would make more sense. I mean the guy is a competent painter, right? He didn't have to make photorealistic copies of someone else's work, en masse and in his victim's face.

That was arrogant. That was "I am the great artist from the right side of the Hudson, and if great artists can hang a toilet bowl in a gallery and call it art, I can take this lowbrow riffraff and sprinkle my special sparkle dust on it and call it art." Except that the toilet bowl is a mass manufactured product whose owner presumably does not care what you do with it, since after all it's designed to be shat in.

Whereas the photo essay was someone else's heartfelt creative product, and using it as sole source and in totality like Prince did is as much as admitting that Cariou performed the real act of creation here and Prince is, well, ripping him off because he can.
posted by localroger at 5:22 PM on May 23, 2012


localroger: ...the photo essay was someone else's heartfelt creative product...

It is nice that you empathize with Cariou.. although now his pictures are famous, which may be lost due to your anger about Prince's act. To tell you the truth, at this point Cariou should be thanking Prince for what he has done for him.

Anyway about the heart.. sometimes in attempt to push the envelope and challenge the things we accept as fair, right, and normal, get turned on their heads by artists and some hearts get ripped out in the process.

The price of progress? that is, if you believe in such a thing as progress.. I am skeptical myself, but do believe that the envelope sorely needs pushing.
posted by snaparapans at 5:36 PM on May 23, 2012


I guess I was wasting my time taking art history classes at the International Dada Archive.

That really depends. It's looking like a possibility.

Direct quote from the letter written by NY dadaists in regards to The Society of Independent Artists refusing to exhibit the work :

"Whether Mr Mutt made the fountain with his own hands or not has no importance. He CHOSE it. He took an article of life, placed it so that its useful significance disappeared under the new title and point of view – created a new thought for that object."

If that's not recontextualizing something I'm not sure what to tell you at this point.
posted by stagewhisper at 5:47 PM on May 23, 2012


[fixed a typo in the post and added an NSFW indicator where one should have been, carry on.]
posted by jessamyn at 6:11 PM on May 23, 2012


thanks jessamyn!
posted by snaparapans at 6:13 PM on May 23, 2012


Yes, I know, stagewhisper.

Perhaps instead of consulting wikipedia for dubious art historical references, you could consult the original document, which I have had the pleasure of holding in my own hands and reading with my own eyes. You missed the crucial sentence (in larger, bolder type) that followed your cite:

As for plumbing, that is absurd. The only works of art America has given are her plumbing and her bridges.

This isn't recontextualizing plumbing and bridges as Art. This is saying there is no art in Art. This isn't about putting a urinal inside a frame and calling it Art. This is about destroying the frame.

Later on:

To those who say that Mr. Mutt's exhibit may by Art, but is it the art of Mr. Mutt since a plumber made it? I reply simply that the Fountain was not made by a plumber but by the force of an imagination; and of imagination it has been said, "All men are shocked by it and some overthrown by it."

This is about equating the creative process of manufactured objects, both "art" and mechanical, functional objects like plumbing. This is not about the object or its context.

Due to the semiotic complexity of foundational Dada documents like this, I don't expect this meaning to be apparent upon a superficial reading.
posted by charlie don't surf at 6:14 PM on May 23, 2012


Due to the semiotic complexity of foundational Dada documents like this, I don't expect this meaning to be apparent upon a superficial reading.

Thank you for the belly laugh, I will be certain to pass on your vastly superior and thorough knowledge of this subject to all the past highly-regarded contemporary art historians who I have been lucky enough to have been personally mentored by and shall now bow before your superior intellect. I will also remind myself to continue to ignore your frequent and completely incorrect authoritative assertions about art, art history, post-modernism, semiotics, and so on as I have been able to do in the past. I am not sure what got into me, I experienced a moment of weakness, and I apologize to the OP for participating in this ludicrous derail.
posted by stagewhisper at 7:04 PM on May 23, 2012


Perhaps you could try that again without the ad hominem and the Appeal To Authority.
posted by charlie don't surf at 7:18 PM on May 23, 2012


[Folks, don't turn this thread into some sort of sand crane mating dance thing, please. Just focus on the topics in the thread, not each other. Don't make it all about you. Thanks.]
posted by jessamyn at 7:23 PM on May 23, 2012


I've just read the judgment and I'm not seeing how it's a bad one. I'm not a law-talkin' guy, but of course the court is going to order Prince and Gagosian Gallery not to display the infringing works; to do otherwise would be to say "You created a commercial derivative work that infringes on copyright, please stop benefiting from it whenever it's convenient for you". As for the works being destroyed, that's up to Cariou at this point, nothing in the judgment that I could see mandates their destruction.

I do agree that Prince seems to have really annoyed the judge. She cites the four factor test for fair use on page 13 and spends the rest of the judgment beating Prince and Gagosian roundly about the head with it. On the other hand, if you're walking into court having created commercial works that infringe on someone's copyright, you made no attempt to licence your materials, you ignored a cease and desist, the plaintiff can show harm, and your line on it is "It's just a matter of whether I like the image"... well maybe you need to have a judge pound the difference between art and the law into you.
posted by Grimgrin at 8:37 PM on May 23, 2012


Anyway I hope that I was able to help you see the big change in meaning between Prince's and Cariou's work.

Well, no not really, cuz I don't buy it, but points for trying. Some of the works in "Canal Zone" may fit your description, but unless there's some hidden element drawn by hand, the particular example here is basically done in something like Photoshop, and is indeed as easily reproduced as a photograph. It looks to me no different than 90% of the funny 'shopped concert posters you see stuck on lamp posts for some local band.
posted by Hoopo at 8:45 PM on May 23, 2012


Hoppo: but unless there's some hidden element drawn by hand

FWIW: The blue "mask" on the face is acrylic paint, done by hand. The guitar is actually collaged by hand onto the canvas. The appropriated Cariou photograph is applied mechanically and is ink jet on canvas.

Also the funny 'shopped concert posters you see stuck on lamp posts for some local band, may in fact be a pop culture reference by Prince.

Perhaps a way for you to see the significant difference between Cariou's photograph and Prince's painting, is that Prince created a work that looks like funny 'shopped concert posters you see stuck on lamp posts for some local band, and Cariou's photograph looks like a fine art documentary photograph. Quite a different look between a street poster you describe and a gallery quality fine art photo, imo.

Oh, and the reason I am accumulating points for trying comes from a desire to share my deep love for art by providing you with some threads so you can enter into an otherwise opaque space and appreciate what Prince is doing.

One thing for sure is that Richard Prince cares deeply about art, and did not take the easy way out in this case. Had he chosen to he could have easily come up with some BS about transforming the works, and the case would have been dismissed.
posted by snaparapans at 9:19 PM on May 23, 2012


Oh, and here is the original press release for the show Canal Zone at Gagosian Gallery. It mentions some things that a viewer would not know just looking at the paintings, or jpegs of the paintings on the internet.
posted by snaparapans at 9:40 PM on May 23, 2012


appreciate what Prince is doing.

Profiting from the work of better artists of lesser stature by lazily appropriating their work and slap some other shit on, in the context of a commercial art market that depends on keeping alive the artificial distinction between high and low art that makes such appropriation not just possible, but laudable?
posted by MartinWisse at 3:38 AM on May 24, 2012


MartinWisse: Profiting from the work of better artists of lesser stature

As I have already said Cariou should be thanking Richard Prince.

You have discovered an artist who you believe is better than Richard Prince, who's work is very affordable.. His book, Yes Rasta is out of print and a steal...

But if you want to up the ante (still very inexpensive), here is a SCARCE signed copy of Yes Rasta

Also Trenchtown Love (2003) signed by Cariou..

I couldn't find any of his Photographs for sale but here is his website which has contact info.. Also other book projects and magazine work..

If you email him, I am quite sure you can get an original signed Photograph from him for a very reasonable price.
posted by snaparapans at 9:10 AM on May 24, 2012


I think a few things are being conflated here that shouldn't be when it comes to determining value. The art market operates on a parallel track to art-making, so the actual cultural importance of any given work is not directly related to how much that work fetches at auction or in the gallery.

Personally I think these Prince works are weak, but whether art that appropriates and incorporates pre-existing imagery or objects from other places is terrible or a masterpiece shouldn't have any bearing on whether or not the methods employed are protected under Fair Use. Should judges now be art critics, and, if one believes that appropriation is usually wrong (I don't) does it become less wrong to you if you love the resulting work? I look at this issue as being analogous to free speech- it's more important to defend works that are lazy, poorly executed, cliche, etc. than have Fair Use protections further eroded.

"If the pixel art "Kind of Blue" was out of bounds--which appeared to have been drawn by hand in a completely different style--Prince's claim to "Fair Use" has even less merit in my mind."

We will never know if "Kind of Blue" would have been ruled out of bounds by the courts or if it would have been protected under Fair Use (as was assumed by Andy Baio) because a Fair Use defense would need to be mounted and the court costs (with no guarantee of winning the case) and potential fines if the judge ruled against Baio convinced him to settle rather than risk losing a case a lot of people believe he would have won. That's a major problem with Fair Use protections.
posted by stagewhisper at 10:02 AM on May 24, 2012


....and now I just came across a link to this article which pretty much expands on (and more articulately) my stated position.
posted by stagewhisper at 10:10 AM on May 24, 2012


stagewhisper :....and now I just came across a link to this article....

Well then you may also like this article as well..

I think that Prince's refusal to step in line and mouth the words "yes, Judge, I have thought about Cariou's work and am commenting on it, thus it is transformational", is really great.

Why should the artist"s intent mean anything, when it is really about the work, and in this case the work in the marketplaces. If the words of an artist are so magic, then why even bother with a law suite, as it is a fait accompli.

Regarding the article you cited: “The Prince defense seems to imply that if ‘comment’ and ‘criticism’ are accidental to the artist’s intent and can be solely grounded in viewer reactions to the works, what we have as a measure is money.”

Well, isn't this case only about money?... at least for the parties involved? It is not about the cultural value of either Prince's work or Carious. It is about financial damage, money owed because Prince is stealing revenue that would otherwise be earned by Cariou, no?

Now, if Prince were selling the works for less than Cariou, which put Cariou out of business, because why buy the original when you can buy a cheap knockoff, that would be infringement. But it seems that the market does not particularly care about Cariou's work, and places a far greater value on Princes appropriations than on the original works.

As crass as it may seem, I think the money quote is quite brilliant on the part of Prince's legal team.
posted by snaparapans at 10:40 AM on May 24, 2012


This would be a lot easier for me if Richard Prince wasn't such a hack. He's exactly the sort of artist people will laugh at in 50 years when pointing out the excesses of what might be called the "Gagosian era"

Even so, I think I come down on his side, I do believe the images were transformed enough to be considered fair use.
posted by cell divide at 10:50 AM on May 24, 2012 [1 favorite]


right, I agree with you this case is about money- and I especially agree with this line:

"We ask only, “Did artist B take money out of the pockets of artist A?” If he didn’t, then he did not infringe."

in the article I linked to.

I think all other considerations about money, apart from that very specific test, should be moot. My above statement is more about expanding Fair Use in general rather than this specific case, the outcome of which may instead limit it further.
posted by stagewhisper at 10:51 AM on May 24, 2012


also, thanks for a link to Joy Garnett's article. I remember reading it a while back, but had forgotten how well it lays out the history and original intent of copyright and Fair Use. It's really important to revisit what the laws were intended to do and what some of the unintended consequences have been when cases like these come up.
posted by stagewhisper at 10:58 AM on May 24, 2012


stagewisperer: My above statement is more about expanding Fair Use in general...

yes, that is clear.. and I think that we can thank Richard Prince for not taking the easy way out, as his risk is well worth taking as it will be a big win against the ever tightening of grip of copyright law at the behest of corporate money.

And, yes, I think that the 2nd circuit will rule for Prince, and then we get to see it go the SC.
posted by snaparapans at 11:09 AM on May 24, 2012


celldivide: This would be a lot easier for me if Richard Prince wasn't such a hack.

Just curious, do you dislike all of Richard Prince's work? or, are you not particularly keen on appropriation artists.. or contemporary art in general?

Like many, he started out with works that no one was interested in buying in the 80's.. 303 gallery, and Barbara Gladstone.. Gagosian is fairly recent incarnation, for him. His Cowboy series was inexpensive and very few thought it worth paying the few hundred bucks for a print, back then.

Not for everyone.. but I do not see why you would call him a hack. He is very serious about making art, and works hard at it, from what I can tell. Yes, he may be arrogant and not someone you would want to talk to in a bar, no less be friends with, but a hack?..
posted by snaparapans at 11:29 AM on May 24, 2012


And, yes, I think that the 2nd circuit will rule for Prince, and then we get to see it go the SC.

yes, I hope so too. And although at the time I thought Prince was shooting himself in the foot (and taking down artists rights along with himself) by his refusal to acknowledge the transformational nature of his work (and what looks to me like an obvious critique of a certain type of noble savage imagery), I'm coming 'round to a position similar to yours.

The more radical stance is probably the right one, and the only chance artists have of pushing back against, as you correctly point out, "the ever tightening of grip of copyright law at the behest of corporate money", risky as it may be.
posted by stagewhisper at 12:22 PM on May 24, 2012


It is possible to believe that copyright is out of control in certain areas and that Prince acted like a dick and Cariou is in the right here.

Joy Garnett is dead wrong in one respect; while copright law may have arisen due to the realities of mass production, it doesn't actually say anything about mass production. Prince took Cariou's work en masse and with only superficial modifications and sold it as his own in a channel not available to Cariou. It really doesn't matter that Prince went to the trouble of vandalizing Cariou's images; he mechanically reproduced them, the very thing Garnett complains isn't a thing with one of a kind paintings, and he sold the very recognizable and numerous copies for big money as his own work in a channel not available to Cariou.

Prince should have licensed Cariou's work. The word for the day is "royalty." It's not rocket science. I will give Prince props for one thing; I think he was simply telling the truth in the first proceeding when he admitted he had not transformed the works. He may have been trying to make a point about art, but art isn't the law. It's not "copyright out of control" when fair use is limited for valid reasons. Prince went way over the line, and I will be astounded if he prevails in the end.
posted by localroger at 12:56 PM on May 24, 2012


localroger: ...he mechanically reproduced them....

He made unique paintings and used as part of the process mechanical reproduction.. that is quite different from mechanically reproducing editions of a painting. Perhaps you are missing some information.

I would recommend reading the press release where it describes the process Prince used to make the paintings.

he sold the very recognizable and numerous copies...

Again, you may be misunderstanding the process. Each painting was unique and quite different. There were no copies of Prince's paintings made, save for the catalogue which accompanied the show. They were all made by hand.

I think he was simply telling the truth in the first proceeding when he admitted he had not transformed the works.

He did not address the issue of transformation, no admission on his part either way whatsoever.
posted by snaparapans at 1:54 PM on May 24, 2012


snaparapans, I read the account of how Canal Zone was created. Prince started with mechanically printed reproductions of Cariou's works, did a limited amount of cropping and rearranging and daubed some paint on them. The art world argument is that this latter process makes the result unique and different from the mechanically created copy which was cropped and daubed.

Prince didn't just do this to one of Cariou's images, he did it to forty of them. He didn't do it to forty images by different photographers, any of which might be replaced with something else preserving the overall effect of Canal Zone; without Cariou's work, there is no Canal Zone. He didn't take bits and pieces which might be rearranged, even if taken from the same source work, without effect; he used entire composed photographs.

The uniqueness of the cropped and daubed copies is irrelevant; the fact is they were copies and were sold for a lot of money and much of their value is derived from the source material.

He was advised that his only effective defense was to argue transformation, and he refused to do so, suggesting that he knows what he did is over a line; most likely that is the entire point.

Let's say you take my novel and make your own one-of-a-kind print. You're too lazy to actually copy the whole thing by hand so you mechanically copy the text, but you add illustrations and illumination and hand bind it to make a one of a kind artifact, and you sell it for $100,000. Good for you. You owe me ten grand, or we're going to court. And I will win. In writing, that is settled law. What you did is publication even if you only made one copy and it itself can't be easily copied. You got paid for a copy of my story, and you owe me compensation. Full stop. This is even true if you edit the story to a certain extent, and there are a lot of picky details about just how much editing is needed before a text is different enough to be non-infringing. (Executive summary: A lot.)

This is also settled law in photography. The primary metric is whether you can recognize the source material in the final product; if you can, you need to license the source material. The stock photo industry goes back a long way. If someone takes your picture of a beautiful sunset, crops it to show only the beach, photoshops in a swimsuit model, and overlays it with a wall of text -- changes much greater than what Prince did to Cariou's source materials -- you will get paid. This will happen because ad agencies know that you will have them by the short hairs if they don't pay you and get caught.

The only sense in which this is not settled law is that the final output is "fine art," which has a different set of rules for things like collages. The thing is, the law doesn't give a rat's posterior how unique the final product is or whether it was sold from a gallery or a newsstand. It cares about whether it represents publication without permission. At the end of the day Prince made photocopies of Cariou's work, edited them a bit, and sold them at a stiff markup. It makes no difference that it was quantity 1 of each or edited. Making a copy and selling it is the definition of publication even if you add layout or edit out all the cuss words. Prince owes Cariou the same royalties that Jim Beam would owe him if they used one of those same pictures as the backdrop for an ad.

Asking for the pictures to be destroyed is a bit over the top, as even in writing and photography it's incredibly rare to pulp created works. But it has happened. The fact that Prince seems to have done his ripoff-negative-homage partly to spit in Cariou's face will not help in that regard.
posted by localroger at 3:34 PM on May 24, 2012


On review: You seem to be under the impression that Prince actually copied Cariou's photos by diligently repainting them by hand. he'd have a much better case if that was so, but at least two of the links are quite clear that the photos were mechanically copied, and the only original art committed by Prince was cropping, collaging, and daubing.
posted by localroger at 3:40 PM on May 24, 2012


On re-review... You said

He made unique paintings and used as part of the process mechanical reproduction.

That is so off the wall that I misread it. Here's how I make the same statement:

He started with mechanical reproductions and used them as the basis for unique paintings.

Just as true, but somewhat different effect, eh? To go back to Joy Garnett's argument, the issue isn't that Canal Zone is unique and not mechanically reproducible; the issue is that Cariou's photos are photos and are mechanically reproducible, and that's why copyrihgt exists to guard his right to be paid when they are used..

Prince started with mechanical reproductions -- the very reason copyright exists to guard Cariou's work, which can be easily mechanically reproduced -- and then, yes, added value. But he started with Cariou's work, did not change it enough to negate Cariou's claim to it, and made a lot of money off the result.

I really don't see any way this flips in Prince's favor. And frankly, as a part-time writer and photographer, I see that as the copyright system working the way it's supposed to. You want to talk about abuse, call me when 50 years have passed and Cariou's great grandchildren are still trying to assert their claim; then I'll be with you 100%.
posted by localroger at 3:52 PM on May 24, 2012


The amount of cropping, collaging, dabbing etc. isn't what determines if a work is transformative though, localroger. In the case of commentary, critique, and/or parody using fully reproduced images with minor adjustments has been ruled as Fair Use. Parody is not what Prince was going for, but I did want to point out that this is not at all cut and dried or black and white.

This is a somewhat useful Fair Use checklist (there is a pdf link at the bottom of the page) put out by Columbia. The weight given to items on the checklist will be different for works considered fine art, and Columbia's focus here is on research, instruction, and publishing.
posted by stagewhisper at 3:58 PM on May 24, 2012


"did not change it enough to negate Cariou's claim to it" That's a matter of opinion. It will be interesting to see what the courts decide, because the earlier ruling sent shockwaves through the art community given earlier precedents and the historical significance of artists leveraging appropriation as a tool for shifting or creating new meaning.
posted by stagewhisper at 4:10 PM on May 24, 2012


stagewhisper, I expect a lot to ride on whether the infringement is judged based on the standards of photographs or fine art. The infringed materials were photographs. On that standard, Prince has no case.

Prince loses most of his standing on the basis of commentary, critique, and parody because he did it forty times. It's almost as if he was aggressively making sure that none of those standards could possibly apply. If Prince was trying to make a journalistic statement (and all those exceptions are in there for journalists and reviewers) he didn't have to copy half the man's book to do it. You take what you need to make your point. Nobody will be convinced that Prince had some statement he needed to make about Cariou's work that couldn't have been made just as effectively with 3 or 8 works instead of 40.
posted by localroger at 4:23 PM on May 24, 2012


localroger: Well we are in entirely different camps here. It does not matter if Prince used 200 of Cariou's photographs to generate entirely new works that were transformative, parody, critique or any number of other qualities that the Canal Zone Paintings employ.

You appear to have a very narrow view of how Fair Use can apply to new art being made, if it can be applied at all in your view.

And I do not see Cariou being harmed economically one iota by Prince's appropriations. In fact from my POV Richard Prince has helped Cariou's career along quite a bit, at the very least by association.

We'll see how it plays out within the next year when the 2nd circuit court of appeals decides the case.
posted by snaparapans at 7:25 PM on May 24, 2012


localroger: the fact is they were copies and were sold for a lot of money and much of their value is derived from the source material.

This is not true. It is like saying that the company who made the blue paint, or canvas, brushes or glue were what made Prince's paintings worth $1mil each. Without those things the paintings would not exist. He used Cariou's images as raw material just like he used paint.

He was advised that his only effective defense was to argue transformation, and he refused to do so..

Advised by who? I have not heard such a thing regarding this case. Please cite your source.

This is also settled law in photography. The primary metric is whether you can recognize the source material in the final product; if you can, you need to license the source material.

Wow, that makes the case easy... someone should write to the 2nd circuit court of appeals, because they do not seem to be aware that this is settled law and a clear cut violation of copyright law. If you have a cite for that that would be helpful for us all.

The stock photo industry goes back a long way.

Richard Prince is not a stock photographer, he is a visual artist. Different market and totally different use. He made paintings, not stock photographs. He is not competing with Cariou's market in any way.

The only sense in which this is not settled law is that the final output is "fine art," which has a different set of rules for things like collages.

There you have it!

The fact that Prince seems to have done his ripoff-negative-homage partly to spit in Cariou's face...

I really doubt Richard Prince had any personal feelings, positive or negative, toward Cariou when he made the paintings. He saw the pictures as raw material for something else he was thinking about, namely making art.

If Prince was trying to make a journalistic statement (and all those exceptions are in there for journalists and reviewers) he didn't have to copy half the man's book to do it.

Just to be clear, Prince was not making a journalistic statement about Cariou's Photographs, he was using them as raw material to make art. They were mass produced in a book just like the paint was mass produced. He bought the book (or several copies) just like he bought tubes of paint, canvas and other artist materials.
posted by snaparapans at 8:12 PM on May 24, 2012


They were mass produced in a book just like the paint was mass produced.

You do not seem to understand this art thing at all. Really. Oh, you understand Prince's art, but you really have a blind spot the size of the Moon for Cariou's.

I have been in the places where paint is made. Literally. I have been in the places where cloth and paper are made. I have spent much of the last 25 years attending to machines that are used to make things.

I have also made photographs which were good enough to be sold for money.

The two things are not remotely comparable. This is the thing you are not understanding. Cariou's work was not paint, canvas, driftwood, or any other sort of raw material; it was not a commodity. It was the creative output of another artist.

Prince didn't even start with the mass manufactured printed copies of Cariou's work. He blew them up and copied them onto canvas. There is no sense whatsoever that Cariou's works were either commodity materials or random found objects in the way Prince used them. Cariou's pictures were only valuable to Prince because of the creative effort Cariou had put into them. There is no sense in which the Canal Zone prints could even exist without Cariou's creative input.

While I am hesitant to adopt the RIAA's overblown rhetoric about "piracy" and "stealing," the fact is under law Cariou has certain rights as the creator of those images and Prince rolled over them. Had Prince broken into Cariou's house and stolen his camera and turned it into a "readymade" it might also be art, but it would also be a violation of Cariou's lawful rights. That is what this is going to end up hanging on.

It does not matter whether Prince distributed a million mass manufactured edited copies of Cariou's work or made one fine art piece. He copied Cariou's work and sold it in easily recognizable form. He owes Cariou for his contribution to that.

All Prince had to do was license Cariou's work and he would have been good. As I said before, it's not rocket science. Refusing to do so was stupid. Pressing it is even more so. If you want to complain that this affair is going to make life harder for artists who want to use found objects that might be encumbered by copyright, you should complain to Prince because he's the idiot whose stupidity is bringing it to focus.
posted by localroger at 5:34 AM on May 25, 2012


I'm getting the sense that snaparapans knows quite a bit about art, actually.

It feels like this is at an impasse, because we are in disagreement about the word "copy" and how copying was originally intended to be defined in copyright law, and why there were even Fair Use exemptions bundled in in the first place. The issue in the courts is largely whether Prince "copied" Cariou's work in a way that deprived Cariou of income he would have otherwise collected had Prince not appropriated his work. Cariou is arguing that his images *are* commodity materials, and that he is losing money because of Prince's actions. Hence the title of this post.

Do you believe that forcing artists to license images in order to use them should be a requirement and Fair Use exemptions should be done away with? If that were to happen it would, for all intents and purposes, be either prohibitively expensive (in the best case scenerio that would mean pay us enough and we'll let you visually reference us) or far more likely illegal (you want to license our logo so you can criticize us? Not allowed.) for artists to directly satirize or criticize any corporation by using imagery associated with that brand or identity. Not to mention how this would effect other disciplines that rely on Fair Use- say goodbye to The Daily Show, for example.
posted by stagewhisper at 8:21 AM on May 25, 2012


localroger: I think licensing the works would have made sense if Cariou's photographs were not used in a generic way. Or as Prince put it, as raw material. For instance, if Prince were creating posters of Carious works and selling them, Prince would seek to license Cariou's Photographs. Or if Prince was producing travel guides for Jamaica, and used Cariou's Photographs, he would license the images. In this case, Cariou, finding out that his work was used in million dollar paintings, must have made him think that he could, or should, get a portion of the proceeds. If the paintings were made by a no name artist, who's work was not selling, not so sure Cariou would bother. IOW, it is not about principal for Cariou, but about money, which is ok. I do not think he will prevail though, because there is too much art history on Prince's side.

Picasso, Duchamp, Warhol, Rauchenberg, Miro, and 1000's of other artists have appropriated images to create new works of art in the same way Prince does, for a couple hundred years.

There has to be a balance between Free Speech and Copyright, so said the Supreme court. Copyright is supposed to protect creators and encourage creativity, not stifle it. Would you stop making photographs if you were Cariou, because of Prince's act? If anything I would think that Cariou is bound to be more creative as he now has a wider audience. Certainly, Cariou did not get burned in the sense that his Rasta photographs are now harder to sell because Richard Prince has used them in his paintings.

There is no harm done to Cariou. Creativity has not been stifled by Prince's act. If this case is overturned on appeal, photographers are not going to think twice about making photographs for sale because artists are going to use them in paintings. That is ludicrous. If anything, if the case loses its appeal, artists who use appropriated imagery, are going to feel stifled big time.

For a look at some other Prince Canal Zone paintings, that bear little resemblance to Cariou, as well as lots of other Artist work that has used appropriation, have a look at the see the Warhol Foundation Brief (PDF). It clearly states the art side of the argument, one that you seem to be less familiar with, compared to the commercial photography copyright protections.
posted by snaparapans at 8:31 AM on May 25, 2012


Picasso, Duchamp, Warhol, Rauchenberg, Miro, and 1000's of other artists have appropriated images to create new works of art in the same way Prince does, for a couple hundred years.

Can you point to any body of work by any of those well-known artists which involved taking an entire body of work from another artist, modifying it in slight ways that left it completely recognizable, and passing it off as an entire body of work of his own, without even combining the appropriated body of work with other works or source material?

Let's see what the copyright office has to say...
The distinction between fair use and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission.
Well that's unhelpful, isn't it? Taking a single image from me, twenty from other people, and combining them in ways that involve significant time and effort on your part would not bother me and would probably be accepted as fair use even if technically the appropriations violate creator copyrights. Copyright is implicit upon creation of a work; Fair Use is a courtesy extended so that certain kinds of derivative works can be made conveniently. There is absolutely no doubt whatsoever that using a corporate logo in course of criticism, or the kind of excerpting done by The Daily Show, is Fair Use.

Taking most of a book of images, modifying them slightly and then passing them off as your own when any child can recognize the source and selling the result as original art is an entirely different thing. The problem is both the extent of the appropriation and the lack of extent of modification. That Prince didn't argue transformation in the first proceeding speaks volumes.
3. The amount and substantiality of the portion used in relation to the copyrighted work as a whole
This is what is going to bite Prince in the ass. He didn't take an image. He took an entire body of work. He abused the courtesy of Fair Use to outright steal another artist's substantial effort.
The safest course is always to get permission from the copyright owner before using copyrighted material.
I suspect the real art here is the performance piece of spurring the controversy. Prince seems to have deliberately designed the whole piece to be immune to any of the usual defenses on Fair Use terms.
posted by localroger at 8:53 AM on May 25, 2012


localroger: one case that I think was correctly decided, regarding art v commercial photography, was the Rodger v Koons String of Puppies case. Koons sent Rodgers' photograph of String of Puppies to an Italian wood carver craftsperson with the instructions, make a life size copy of this photograph in painted wood.

He should have licensed the work first. Koons lost the case.

modifying it in slight ways that left it completely recognizable, and passing it off as an entire body of work of his own, without even combining the appropriated body of work with other works or source material?

You might want to look at more than one of Prince's paintings, as you do not seem to be familiar with the work. Prince uses several other photographic works along with Cariou's in most of the paintings.

Fair Use is a courtesy extended so that certain kinds of derivative works can be made conveniently.

Fair Use is has nothing to do with courtesy, it has to do with the balance between free speech and copyright law. It is a constitutional issue, not about social niceties.

The safest course is always to get permission from the copyright owner before using copyrighted material.

Many artists are quietly getting permission these days to avoid legal hassles.

I suspect the real art here is the performance piece of spurring the controversy.

That is most definitely not the case. Prince has a loooooong history of appropriation art. He is not interested in creating performance art at all, not his thing. He is quite shy of public. He does not even go to most of his own openings.

On the other hand, an arts journalist, Greg Allen, may have created an art work by appropriating the case Cariou v Prince as a published book, available on amazon.

Canal Zone; Richard Prince; YES RASTA
Selected Court Documents from Cariou v. Prince
Greg Allen

posted by snaparapans at 9:16 AM on May 25, 2012


I'll admit to having only seen the Canal Zone images which were used to illustrate the articles. They may have been selected as the most damning.

I didn't mean "courtesy" in the sense of social niceties; it's just the closest English word to the kind of vague exception Fair Use represents. Copyright itself is very well defined; there is very little vagueness in the definition of what is and is not copyrightable, or how copyright comes to exist for a work, or what sort of remedies are available on infringement.

Here is everything the Constitution has to say about Fair Use:
To promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries
Oh wait, Fair Use isn't in the Constitution after all. Like the boundaries of what can be patented and copyrighted, that's later legislation and jurisprudence.

Fair Use is an exception to an otherwise fully developed body of rights. It's even created that way:
Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.
I am not seeing the phrase "creating art" in that quote. If you look through the list of proven examples you will note two very common factors:

1. The appropriation is a small part of the source material
2. The appropriation is a small part of the final product

I hope we can agree that if Prince had simply taken his blown up printed on canvas prints of Cariou's photos, framed them, signed them, and hung them on a gallery wall the resulting "art" would be infringing even if it was making some kind of statement like the readymades or everything Damien Hirst has ever done. There is absolutely nothing in copyright law which gives you a pass just because you sell a copy out of a gallery instead out out of a newsstand.

I expect the court's final decision to revolve around how much of the human skill and effort that went into making Canal Zone what it is was Prince's, and how much was Cariou's, and possibly how much was other peoples' blended into a mix. Maybe the rest of the exhibit mellows the case, but it doesn't much sound that way from the linked articles.

Many artists are quietly getting permission these days to avoid legal hassles.

This is the sensible and correct approach. From that (very good) article:
“The copying was so deliberate,” the court decided, “as to suggest that defendants [Koons and the Sonnabend Gallery] resolved that so long as they were significant players in the art business, and the copies they produced bettered the price of the copied work by a thousand to one, their piracy of a less well-known artist’s work would escape being sullied by an accusation of plagiarism.”
Koons learned that this was a bad idea, which is exactly what I have been saying. The very artists held up upthread as counterexamples, like Warhol, have realized themselves that the law doesn't stop at the gallery door.
posted by localroger at 10:10 AM on May 25, 2012


I hope we can agree that if Prince had simply taken his blown up printed on canvas prints of Cariou's photos, framed them, signed them, and hung them on a gallery wall the resulting "art" would be infringing even if it was making some kind of statement like the readymades or everything Damien Hirst has ever done.

Nope, once again, this scenario you describe could absolutely be protected. It would depend on the context of the work. It very well might be covered under Fair Use if it were determined that the resulting work was homage to a easily recognizable image that is already familiar within the public realm (meaning it's already been widely published and distributed), satire, critique, etc. This is why there are no hard and fast rules and everything is tested on a case-by-case basis.
posted by stagewhisper at 10:52 AM on May 25, 2012


localroger: I hope we can agree that if Prince had simply taken his blown up printed on canvas prints of Cariou's photos, framed them, signed them, and hung them on a gallery wall the resulting "art" would be infringing..

Not necessarily, see Sherrie Levine's works. Basically that is what she did, sans the signing on the front.

And the Fair Use is born from the 1st amendment of the Constitution.
posted by snaparapans at 11:03 AM on May 25, 2012


stagewhisper:

Nope, once again, this scenario you describe could absolutely be protected.

We will just have to agree to disagree then. I would totally sue the artist who did this with any image of mine, and I would expect to win. We will just have to see what the court says in Prince's case. Round 1 went pretty decisively as I would expect.

snaparapans:

And the Fair Use is born from the 1st amendment of the Constitution.

Fair Use is the particular interpretation which was adopted in statutory law to resolve the obvious conflict between Art. 1 Sec. 8 and the 1st Amendment. The Constitution itself says nothing specific about how that conflict is to be resolved.

Anyway, the article you linked which I quoted makes it clear that artists at one time thought they had a magic Fair Use exception, but some of the more prominent appropriators are coming around to the idea that maybe they don't.
posted by localroger at 11:33 AM on May 25, 2012


localroger: ...but some of the more prominent appropriators are coming around to the idea that maybe they don't.

I think that it is more about expediency than anything else. IOW not worth the fight.
posted by snaparapans at 11:40 AM on May 25, 2012 [1 favorite]


The very artists held up upthread as counterexamples, like Warhol, have realized themselves that the law doesn't stop at the gallery door.

Which is bullshit and shame on them for backing down. I'll take an artist's judgment on matters of art/expression/culture over a judge's or a lawyer's or a politician's any day. And if that means what I get is a bunch of artists arguing for a hundred years, well so be it. Doubtless, some beauty will come of it.
posted by philip-random at 11:40 AM on May 25, 2012


IOW not worth the fight.

Or their well-paid lawyers have advised them it is a fight they will inevitably lose.

I'll take an artist's judgment on matters of art/expression/culture over a judge's or a lawyer's or a politician's any day.

While that's a fine high sounding sentiment it doesn't fly. Lots of people think certain laws shouldn't apply to them, but it's the politicians and the judges that the cops listen to.

To wit, if your art project was to break into peoples' houses and steal items which you then display as found-art objects in your gallery, your artistic purpose is going to have zero merit when the cops show up to argue about who owns those objects.

I myself think copyright violation shouldn't be considered comparable to theft, but it is a law which exists for valid reasons and you are no more immune to that law than you are to more serious laws. The rest of us have to work within laws we sometimes don't like too. Work to change the law if you don't like it. There's lots not to like about the way copyright is implemented, but the plight of poor millionaire artists who have to ask permission to use the images they want to sell for $millions is not going to have much traction with the voting public.
posted by localroger at 1:07 PM on May 25, 2012


localroger: To wit, if your art project was to break into peoples' houses and steal items which you then display as found-art objects in your gallery, your artistic purpose is going to have zero merit when the cops show up to argue about who owns those objects.

Regarding the case at hand, I am not sure why you keep on making an analogy to stealing. Please tell me how Cariou has suffered any loss? He still has all the items in his "house", and has another $40 or more from the sale of a out of print book was sitting in a warehouse.

As Prince himself said in a discussion at the Whitney in 1992, “If you’re going to steal something, you know—you go to the bank.” Patrick Cariou is not the bank...



The Brooklyn Rail take on the case, gives a hat tip to your POV, and possibly straddles our disparate notions about what is right:

It must be noted that Prince never tried to pass off Cariou’s work as his own. Anyone spending millions on Prince’s work knows him as an appropriation artist; when you buy a Prince painting, you patronize a conceptual contribution as well as an image.

But when an appropriation artist’s sources are so esoteric that they are unrecognizable, perhaps he crosses the line between appropriation and plundering...


...Judge Batts’s opinion may seem stodgy and absurd to the art-minded reader, just as appropriated imagery as original artwork is irreconcilable with current thinking in the realm of copyright. Judge Batts may not be wrong in her application of the law, but the law seems to write itself out of all relevance in this decision.
posted by snaparapans at 1:36 PM on May 25, 2012


Regarding the case at hand, I am not sure why you keep on making an analogy to stealing.

Because I am trying to emphasize that the higher purpose of Art obviously must defer to some laws. Copyright is just another law. Does the higher purpose of Art make the artist immune to this particular law? If so, why not to stealing? Or, as in one horror movie I saw a long time ago, murder? Who decides which laws get selectively applied to artists? And who decides who is an artist eligible for exception?

The Brooklyn Rail seems to get it even though they don't like it.
posted by localroger at 1:48 PM on May 25, 2012


if your art project was to break into peoples' houses and steal items which you then display as found-art objects in your gallery,

then I'd be guilty of breaking + entering and I wouldn't be looking to my artist-comrades to bail me out.

so-called "appropriation" is far more vague, abstract, open to interpretation and thus argument, which is what should happen.

Keep the Law out of it.
posted by philip-random at 2:44 PM on May 25, 2012


so-called "appropriation" is far more vague, abstract, open to interpretation and thus argument

Not really. There is a law. It is pretty clear as to what rights the makers of new works have. It spells out some exceptions, which are a bit vague, but none of which come very close to describing gallery art. By any reasonable non-art-world interpretation, appropriation without substantial transformation is copyright infringement.

Normally the problem here would be figuring out what the victim "lost," since surely such a riffraff as Cariou wouldn't have the opportunity to post his wares where Prince can anyway. But wait! Prince caused Cariou to lose his gallery show, precisely because of the resemblance of his works to Cariou's originals. Oops. That is about as open and shut as it gets, and I will predict right here Prince is going to have to compensate Cariou, if not for some reasonable fraction of the prices he charges for his derivative works, then surely for the lost income and opportunity represented by that show.

It frankly astonishes me that people are not only making this argument, but are so fervent about it. Any aspiring writer or photographer learns early on about copyright, both our rights and our obligations. There are contracts. There are penalties for breaking the rules. The businesses that traffic in our wares scrupulously follow the rules and won't deal with creators who get them sued.

It reminds me almost comically of the way many birders think all No Trespassing signs come with an implicit * Except for Birders coda.
posted by localroger at 3:16 PM on May 25, 2012


localroger: Prince caused Cariou to lose his gallery show, precisely because of the resemblance of his works to Cariou's originals.

Hilarious... here are a few missing details:

A second point of the appeal, Schiller said, is Cariou’s claim that he lost an exhibition -- and thereby suffered commercial damages -- as a direct result of Prince’s appropriation. According to testimony, Calypso boutique owner Christiane Celle, who was in the process of opening an art gallery in New York, was in negotiations with Cariou to exhibit the Rasta works. But, when Gagosian exhibited the “Canal Zone” show in 2008, Celle changed her mind. In her deposition, she said she didn’t want to look “like I'm trying to take advantage of the success of Richard Prince.”

Yet Celle also testified -- and Judge Batts did not mention this in her decision -- that she repeatedly tried to persuade Cariou to commit to the show, but he did not sign an agreement or return her calls. “There was no show, she didn’t have a gallery yet,” Schiller said. Furthermore, Schiller said he may seek to undermine her credibility since she once dated Cariou’s assistant, Thierry Des Fontaines.


more on that ludicrous charge and other hilariitieshere
posted by snaparapans at 3:49 PM on May 25, 2012


Ah, interesting. Well for future reference, since these things will be coming before judges whether you like it or not for some time, I've known a couple of judges and there are a couple of types of people judges really, really don't like:

1. People who think they are above or immune from the law
2. People who set complicated chains of crap like this in motion that cause them to get headaches.

Now it may be that Prince just walked into a perfect storm of legal fuckery, but I think this case is going to blow a large hole in the ages old idea that art has some kind of immunity from copyright violation, and that's going to become case law and if you want to blame someone for that you should probably blame Prince for using a large body of a much lesser known artist's work as the basis for a large body of his own.

I'm aware of another situation where longstanding tradition was upended. I have a friend who used to write for pornographic magazines. She, and a couple of dozen other people, were responsible for most of the content of 5x9 format letter magazines which were the staple of cheap niche porn before the internet came along and dried up her market.

So anyway, the traditional mode of doing business was she would send in one or more "letter sets" (there was a standard format) and if they were acceptable to the editor she'd receive a check. And that was it. And one year, she realized that she had received something like $30,000 of these checks, and when she was doing her taxes she had an omigod moment.

So she called her largest customer and said, look, you guys need to send me a 1099. And they were, shall we say, reluctant; after all while certain legally unsavory people were no longer driving the industry there were bad memories. Paper trails were not favorable.

So my friend pressed them and said look, I'm not going to write for you any more unless I get tax records, and while you're at it you should probably start sending invoices and acting like a real business. And apparently the porn people talked to their lawyer who advised them of their own exposure due to the lack of paperwork, and lo one day my friend got an invoice. And so it was ever after; not just that publisher but the entire industry changed its way of doing business.

This is such a moment for the art world. The Brooklyn Rail is wrong on one count; the law is not on the wrong side of history here. The art world is being drawn into the web of relationships and obligations within which the rest of us all have to work. You may see this as a bad thing because it limits creativity, but those of us who you're likely to step on in the course of your pursuits will disagree.

If I take a picture of a landscape and there is a person in that picture whose face is recognizably visible, I have to get a model release or that picture has no commercial value and I have to be careful about even posting it online. I don't like that and it makes photography a PITA sometimes but it's the law for good reasons which I understand. It's not fair that some ordinary schlupp might find their face on the cover of a magazine one day because I was taking a cool pic of the waterfall behind them when they were in a candid moment. They get to control that image, not me. That is the law, and I understand why it exists.

The law is pretty clear that what Prince did to Cariou is wrong. There are good reasons for that and you lot need to learn to work within that, just as photographers did many decades ago.
posted by localroger at 4:41 PM on May 25, 2012


Your point is clear and has been for some time. "The law is pretty clear ... " etc. But I guess I'm one of those kids who often ignored No Trespassing signs, got myself in some trouble, but also got to amazing places I would otherwise have been denied. I've also been smoking marijuana for about forty years, and I've been known to not come to a complete halt at every STOP sign.

What's pretty clear to me is that in some situations the Law serves best as a fallback when all other attempts at conflict resolution have failed, not a means to set my course. Not that I don't often respect the law. I almost always do. But with this particular issue (like most revolving around the peculiarities of the cultural milieu) I'd like to see artists (and their communities) hashing it out, not outside agencies.
posted by philip-random at 6:08 PM on May 25, 2012


The law is pretty clear that what Prince did to Cariou is wrong.

No. For the last time, the law is not pretty clear when it comes to art.

You may believe it should be, and maybe it will be some day (and that hard line may not fall where you'd like, or it may not fall where I like) but that's not the reality at this moment. There are exemptions for Fair Use and these things continue to be hashed out in the courts. There have been rulings made for and against artists appropriating other works over a period of many years.
posted by stagewhisper at 8:11 AM on May 26, 2012


stagewhisper, the law does not say one word about fine art being any different from photography. The list of Fair Use examples in the law not only doesn't include art, it doesn't include anything that very closely resembles art. In the absence of such language in the law, art does not have a Fair Use exception.

What the situation appears to be is that for a long time artists have been acting as if they have a Fair Use exception, and incidents like this have occurred rarely enough that there has never been much reason for them to suspect otherwise. There has never been a test case before the Supreme Court so any case law, such as that established by the Koons case, applies only in jurisdictions where those cases were tried.

I rather suspect that the artists in the quietly asking permission link have been doing that because their lawyers have given them this same advice.

The language used by the judges before both Koons and Prince round 1 indicate strongly that they see no Fair Use exception for art and that the judges are rather startled that anybody thought this was an appropriate thing to do.
posted by localroger at 4:17 PM on May 26, 2012


localroger:What the situation appears to be is that for a long time artists have been acting as if they have a Fair Use exception, and incidents like this have occurred rarely enough that there has never been much reason for them to suspect otherwise.

Whether or not the copyright infringement case is brought against an artist or anyone else is irrelevant as the law is exactly the same for everyone. The incidents of copyright infringement are vast not rare, and fair use is not something that has been disproportionately claimed by artists. I am a bit confused how you can assert that Artists believe that they have Fair Use exception (more than anyone else) yet incidents like this are rare?

There has never been a test case before the Supreme Court so any case law, such as that established by the Koons case, applies only in jurisdictions where those cases were tried.

There have been many test cases before the SC regarding copyright infringement and fair use defense. The fact that none have involved artists suggests that it is rare for artists to infringe on copyright, not the contrary as you seem to believe.

Courts, including the Supreme Court does not decide cases based the fixed words of law, but on precedent, aka case law. The infringement case against Koon's, BLANCH v. KOONS AG, was based on case law, and solid enough that Blanch did not venture an appeal. It is worth a look at that case, as there are many similarities to the Prince case.

One thing is for certain: Richard Prince believes that he did not infringe on Patrick Caroiu's copyright nor does not think he is belongs to a special class of people immune from copyright law, which you seem to believe.

if anything copyright law has been abused by big money corporations fueled by greed, claiming rights that were never intended by the law. Even though Richard Prince is a very successful artist who's works sell in excess of $1mil, he is fighting for the little guy here, not big money.
posted by snaparapans at 6:10 PM on May 26, 2012


Well this case looks like it will tell the tale. I'll be watching with interest.
posted by localroger at 6:51 PM on May 26, 2012


yes localroger.. I too will be watching with interest.. and I do not think we will be alone!
posted by snaparapans at 6:56 PM on May 26, 2012




Interesting. From the Wiki article on model release liability, which I mentioned above that I have to observe as a photographer:
Publishing an identifiable photo of a person without a model release signed by that person can result in civil liability for whoever publishes the photograph.

Note that the photographer is typically not the publisher of the photograph, but usually licenses the photograph to someone else to publish. Liability rests solely with the publisher, except under special conditions.
So Rips has no claim of this sort precisely because of the Swiss cheese, though that might not be Salle's prime motivation for slapping it over his face. But the Rastas in Prince's gallery are identifiable, precisely because of the way the appropriation was done leaving a trail through Cariou's book.

I suspect this is one of the things that the galleries are trembling about; they could quite realistically be considered the "publishers" of a gallery show. And if you appropriate the likeness of some person who isn't famous and make them famous by getting your image everywhere, there are a lot of reasons (and a lot of them good) why you might owe them a substantial fraction of your earnings from that image.

Cariou's actual claim is another thing entirely and possibly a bit shakier depending on whether Cariou's lack of access to Prince's market can be regarded as an excuse to essentially market Cariou's work to this personal goldmine and keep the loot.
posted by localroger at 2:20 PM on June 20, 2012


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