via artnet news, March 23, 2011:
RANDOM RICHARD PRINCE COPYRIGHT DISPUTE NEWS
The news that Richard Prince and Gagosian Gallery had lost a big copyright case last week (news that was broken on the APhotoEditor blog) ping-ponged around the art world, but failed to evoke any response from the principals. That’s standard procedure in ongoing court cases, needless to say, as was noted by Daniel J. Brooks of Schnader Harrison Segal & Lewis, attorneys for Patrick Cariou, the French photographer who brought the copyright lawsuit.
"We are pleased with the decision," Brooks said. "It’s thorough and well-written, and lays to rest the notion that ’appropriation artists’ are entitled to a different fair-use standard than anyone else." He declined further comment when asked about possible damages or any settlement talks, and also declined to make his client available for an interview. "It’s not a good idea while the case is proceeding," he explained. Brooks might want to convey this to Cariou, who yesterday gave an interview to Artinfo in which he mused that what Andy Warhol and Robert Rauschenberg did was alright, undercutting his own complaint.
For his part, Prince has other fish to fry. His special exhibition at the Bibliothèque Nationale in Paris, titled "American Prayer," opens this week, as does "de Kooning," a show of his works at Gagosian Gallery Paris. Presumably these collages, which famously combine imagery from Willem de Kooning’s paintings of women with gay male pornography, can be called proper parodies, and thus fall under the "fair use" exception to copyright law.
The decision in Cariou v. Prince does seem to have far-reaching implications for many contemporary artists, who like their historic predecessors are known to copy a thing or two from an assortment of sources. "It puts a lot of artists in trouble," said painter and blogger Joy Garnett, who keeps a close eye on copyright issues in her blog, Newsgrist. "The idea that referencing other artworks might be subject to legal regulation goes counter to any idea of creativity," she added, echoing the sentiments of critic Charlie Finch.
"The case is radioactive,” exclaimed John Koegel, the Manhattan art lawyer who has represented Jeff Koons on similar issues. Koegel noted that Prince and Gagosian could immediately appeal the liability ruling to the second circuit -- the demand that all the infringing works be turned over -- or try to settle, or go to trial to determine damages. In the latter instance, Koegel said, the trial would determine what portion of the value of Prince’s works were due to Cariou’s photographs. “You’d have the spectacle of collectors testifying as to why they bought those paintings, whether it was because of Cariou’s Rastafarian imagery, or because of some other reason.”
Another attorney, who asked to remain anonymous, was even more pessimistic. “It’s a pretty radical decision,” he said. "The only issue is how much Prince and Gagosian are going to have to pay," he hazarded. "The way I see it, they get slammed five ways: 1) their profit, 2) destruction of the works, 3) Cariou’s losses for his unsold works, 4) attorney fees for the plaintiff, and 5) they have to deal with the collectors who bought the works, who now can’t display them and would probably want their money back."
Students of Prince’s "Canal Zone" series may remember, as well, that not all the imagery comes from Cariou’s scenes of Jamaica. The works also feature pinups -- taken from photographs by Richard Kern. "I’m not suing," Kern said, laughing. "Richard’s a friend, and wrote the intro to Action, the Taschen book that contains the photos he used."
