Bad news for appropriation artists and anyone else who’s ever produced a collage. Last Friday, Judge Deborah Batts ruled against famed artist Richard Prince in the case of Patrick Cariou v. Richard Prince, Gagosian Gallery, et al 08 CV 11327 (S.D.N.Y. March 18, 2011)(Batts, J.), finding that the artworks in Prince’s Canal Zone exhibition – held at Gagosian in 2008 - constituted copyright infringement. Greg Allen put it best, yesterday, saying,
it seems obvious to me that Prince and Gagosian were operating under the transformative work/fair use assumptions of Blanch, where changes in scale, medium, context, and color, along with process, editing, collaging, or other process-related elements, are used to identify a transformative work. Judge Batts doesn’t even address process, or any relevance of Blanch to the transformativeness; instead, she makes a blanket assumption that all 29 Prince paintings are infringing because they include Cariou’s Rasta images in some way.
According to the ruling, Prince’s appropriation of Cariou's work failed to meet standards of fair use on four specific grounds. Those headings and notes below:
1. The Purpose and Character of Prince’s Use of the Photos
- Transformative Use (Does the new work transform the original, adding something new, altering the first expression with another). According to the court, the answer to this question is no. Prince used Cariou’s photographs with minimal alterations and testified that the work had no specific meaning. The court found on the side of the plaintiff, saying that only works that offer meaning and critique constitute fair use.
To my mind, this is one of the most problematic parts of the case. Andy Warhol repeatedly told the press he didn’t know what his work was about and that it wasn’t about anything, and, as far as I know, was not sued for his reproductions. Under this ruling, Warhol’s now-canonical “Green Car Crash” would not have lasted long. This suggested a couple of things to me initially, namely that when an artist reproduces an unaltered photograph in paint, it will be taken more seriously than a reproduction in ink. This, however, was before I remembered the show, which is largely made up of painted collages, most of which have been significantly altered. These are not the reprinted photographs-of-photographs the artist became famous for producing. Also, as noted by Greg Allen more than two years ago, the process is central to these works, as described in the press release itself:
[the paintings] are, literally, “put together,” like provisional magazine lay-outs. Some images, scanned from originals, are printed directly onto the base canvas; others are “dragged on,” using a primitive collage technique whereby printed figures are roughly cut out, then the backs of those figures painted and pasted directly onto the base canvas with a squeegee so that the excess paint squirts out on and around the image. On top of this are violently suggestive swipes and drips of livid paint and scribbles of oil-stick crayon which, together with the comic, abstract sign-features that mask each figure’s face, add to the powerful push-pull between degree and effect. This has become a completely new way for Prince to make a painting, where much of what shows up on the surface is incidental to the process.
Even in cases where little alteration has occurred, the process itself is distinctive enough to show difference. Notably, the case Allen cites supporting Prince and the case Judge Batts used to rule against Prince share a defendant – they were Blanch vs Koons and Rogers versus Koons, respectively.
- Commerciality (Does the work serve a commercial purpose or a non-profit educational use? If it’s the latter Prince has a better case.) Gagosian placed ads in seven magazines and grossed $10,480,000.00 in sales. Seven other paintings were exchanged for art for an estimated $6-8 million. While the court recognized the inherent public interest and cultural value of public exhibitions and access, it found use of the photos to be substantially financial.
Gagosian and Prince took home millions of dollars for a show I remember being shockingly ostentatious. This doesn’t sit well with many people and it’s not particularly surprising Cariou felt left out of a windfall. Still, was there not a windfall for Cariou as well? More on that in section four.
- Bad Faith Prince acted in bad faith by failing to specify the intended artistic use when he requested a copy of Cariou’s book. The gallery acted in bad faith by being “aware that Prince is an habitual user of other artists’ copyrighted work, without permission…the record is equally clear that the Gagosian Defendants neither inquired into whether Prince had obtained
permission to use the photos contained in the Canal Zone Paintings nor ceased their commercial exploitation of the paintings after receiving Cariou’s cease-and-desist notice”
The most frightening part of the verdict by far. No suit was ever lodged against Prince for his flat appropriation of ads, though the work was recently lauded in a retrospective at the Guggenheim, one of America’s most important public institutions. Still, Gagosian staff were acting in bad faith because they didn’t have the good sense to share Judge Batts’s un-rendered verdict on a non-existent case. The artist too was considered working in bad faith, his reckless theft of copyrighted material resembling that of a drug addict.
2. The Nature of Copyrighted work
- From the verdict: Judges should consider whether the protected [work] s of the creative or instructive type that the copyright laws value and seek to foster.” Pierre N. Leval, Toward a Fair Use Standard. Judge Batts describes Cariou’s work as highly original and creative works, thus falling within the realm of copyrightable material. This weighs against the claim for fair use.
A debate over whether originality means anything at all in the age of digital photography could be had, but it’s a little outside this case. Judge Batts quotes extensively and structures her response according to Leval’s paper, which goes on at length about how transformation must occur for fair use to apply and offers only literary examples. Batts draws heavily from this paper to produce the structure of her own verdict.
3. The amount and substantiality of material used
- The court must examine not only the quantity of material but its importance. Richard Prince uses the central figures in Cariou’s body of work in his own. This also weighs against fair use.
This is partly about transformation again, as there’s an assumption that by focusing on an auxiliary portion of an artist’s work there will be more area to explore and the product will therefore be more distinguishable. The point of appropriation, however, is to use the central figures. Would Warhol’s Green Car Crash work if he’d excluded the car?
4. The Effect of Use Upon The Potential Market For or Value of The Copyrighted Work
- The fourth fair use factor requires courts to consider not only the direct losses suffered by the plaintiff, but potential losses in such arenas as derivatives. The court found harm to the potential derivative market against the plaintiff and dismisses protests that Cariou did not market his work more aggressively.
A real failure on the part of the court exists in understanding how Cariou can and will benefit from Prince’s work. Surely the value of Cariou’s derivatives has increased with the Prince show. What’s more, Cariou holds the original negatives for Prince’s source material. Certainly that’s worth a significant amount of money now.
It warrants mentioning that if the Prince paintings survive, they now will be worth a fortune. Even on a very small scale, we’ve watched as Jeff Koons’s recent threat to sue a bookend manufacturer resulted in a massive increase in sales. These aren’t Prince’s best works, but they are now part of a very compelling narrative that has the potential to shape American art in the future.
CORRECTION: The lead image originally labeled photographs by Patrick Cariou that were not his.