The following was posted by Ed Winkleman on his eponymous blog a few days ago, in response to the recent ruling by U.S. District Court judge Deborah A. Batts on the Richard Prince/Patrick Cariou case. My single comment comes at the end of the comments section:
Gam's remark is exactly right:
"When I read a lot of the comments on other photography sites, what really discourages me is the underling animosity towards painters. Maybe it's deserved, maybe it's not, it's just a schism within the arts.."
It's a very deep, very real animosity. We've seen it surface on countless occasions: think of the infamous lawsuits and C&Ds wielded against Warhol, Rauschenberg, et al. As usual, there's more to it than meets the eye (sorry, bad pun). If one digs but a little deeper into the early history of photography and its reliance on painting for both its pictorial conventions and subject matter (not to mention, er, outright 'copying'), a much richer story emerges than the one framed by recent legal history; the culture of photographers is way more twisted than the simplistic reasoning ('appropriation is theft') and scapegoating of bad boy artists (such easy targets) would have you believe.
I want to add that that Prince, like other notoriously arrogant bad boys (Koons, Fairey), screwed up big-time. Not in the making of their work, but in the extreme hubris demonstrated elsewhere, including in the courtroom, and in Prince's case, in the way his lawyers went after Cariou (declaring that his photographs were not 'original' enough. I mean, what idiots...). So, the artworld bad boys screw not only themselves, but the rest of us who may need to rely on good fair use case law for protection against copyright zealots and the like.
via edwardwinkleman.com:
Tuesday, March 22, 2011
Appropriation Prohibition (or Why I Think Judge Batts Is Wrong)
Pssst....hey buddy...wanna see an outlawed Richard Prince painting?
I'm not sure that the recent ruling by U.S. District Court judge Deborah A. Batts (that paintings from Richard Prince's series “Canal Zone” cannot now lawfully be displayed by the collectors who parted with millions of dollars to buy them) won't make the works all that more precious to their owners. I'd love to know what the judge thinks those collectors need to do to comply with the ruling. Hang a velvet curtain over the paintings? Keep them crated and in storage for eternity? Something even more absurd?
The ruling was a chilling decision for artists who work in appropriation. Artnet.com has the story:
On Mar. 18, 2011, U.S. District Court judge Deborah A. Batts ruled that Richard Prince had infringed the copyright of photographer Patrick Cariou when Prince appropriated 41 photographs from Cariou’s Yes Rasta (PowerHouse Books, 2000, $60), a book of photographs of Rastafarians in Jamaica, for Prince’s own show of artworks at Gagosian Gallery in New York City titled “Canal Zone.”
Prince’s mural-sized collage-and-painting works used figures of Rastafarians from Cariou’s photographs, altering them notably by placing oval shapes over the eyes and mouths of the figures, and by inserting guitars into their hands, sometimes combining them with figures of pornographic nudes (not photographed by Cariou). The exhibition took place Nov. 8-Dec. 20, 2008. Cariou filed his copyright infringement lawsuit against Prince, Gagosian Gallery and Rizzoli (publishers of the catalogue) in December of 2008.
The most unsettling part of Batts' ruling, as artnet.com reports, is how she went so far as to declare Prince's intent for him: "[T]he court found that Prince’s motive in copying Cariou’s photographs was primarily commercial...." If Prince hadn't been using appropriation for decades, I might be able to see Batts' argument (given that "Gagosian sold eight of the works for a total of $10,480,000"), but even then, the notion that an artist cannot do both simultaneously [make important artwork and profit from it] seems a bias that the judiciary, of all institutions, should refrain from propagating. For Batts to claim Prince's primary motivation in creating this body of work was sales is a rather frightening exercise in mind-reading.
But the ruling went far beyond mere money and made a few uniformed declarations about process:
[T]he judge rejected Prince’s claim that his “Canal Zone” works represented “fair use” of Cariou’s original photographs, particularly because Prince’s works do not specifically comment on Cariou’s originals. In testimony Prince admitted that he was not commenting on Cariou’s photographs or Rastafarian culture, but rather sought to pay homage to Cézanne, de Kooning, Picasso and Warhol and other artists. Prince also said that he intended to emphasize three themes: men and women; men and men; and women and women.
Citing the judgment in the 1992 Rogers v. Koons case -- involving Jeff Koons’ String of Puppies sculpture copied from Art Rogers’ postcard photo -- the judge noted that allowing copyright to be infringed solely on the claim of a “higher artistic use” would in practical terms eliminate copyright protection altogether.
This is a philosophical question, and, of course, those who feel their copyrights have been infringed deserve to have their day in court, but "inherent in the process of appropriation is the fact that the new work recontextualizes whatever it borrows to create the new work" (emphasis mine). To my mind, that recontextualization is, in and of itself, always commentary.
I realize this leaves open the door for anyone who can dredge up some hypothetical dooms-day scenario involving one of my artists' work being copied outright with commentary of dubious significance as its rationalization (I can tell you, I'd have to see the work before I'd object), but all of that leaves out the fact that Richard Prince is an acknowledged pioneer and leader in the use of appropriation, who has dedicated his career to exploring the recontextualization of images that are all around us.
Another part of the ruling that is sure to make sphincters twitch throughout Chelsea was this:
The ruling also found Gagosian Gallery liable for Prince’s infringements, on the grounds that the gallery should have ensured that Prince had the rights to the material he used before the gallery offered the items for sale.
It may be a simple (and ultimately expensive) call to one's lawyer to ensure the work a gallery plans to show falls within the realm of "fair use," but it's hard to imagine this won't dissuade younger galleries from presenting work they may be found liable for across the board, or pushing back to make the artists pay the legal fees to prove "fair use." The potential impact of this on art history is (as Charlie Finch so rightly noted in his insightful take on the case) Kafkaesque.
