This Op-Ed was originally published in Artnet Magazine, March 31, 2011.
As is well-known, the artist Richard Prince has lost his copyright infringement suit to the photographer Patrick Cariou [see Artnet News, March 21, 2011]. The decision is now pending an appeal. The news has prompted heated commentary by almost everyone, including copyright maximalists, photographers, collage artists, painters who use appropriated imagery, New York dealers and “open source” mavens. IP lawyers have written boilerplate statements, typically devoid of any nuance or even the most basic understanding of the visual arts. Artists and photographers who either bear Prince a personal grudge, or else find his and others’ methods of appropriation suspect, have trotted out the usual platitudes: "lazy" "thief" "millionaire." In fact, one would think from reading the comments sections of art blogs that Prince’s great crime was in being successful, and that copyright is a convenient tool for redistributing some of his wealth.
But copyright law is not about generating or artificially leveraging artists’ income. It is certainly not about redistributing deserved or undeserved wealth. Copyright is about regulating mass production. Its roots are in late 17th- and early 18th-century publishing and the globalization of the printing press (cf: Statute of Anne, ca. 1709). Long before digital technologies changed the game plan, copyright became a way to deal with the new global mass culture.
Later, photography, because it too relied on mass production and distribution, became reliant on copyright. Among other things, copyright could be wielded as a deterrent for those who might reproduce and profit from works without the permission of their authors. The problem lay in the fact that, with mass-produced works of literature, music or visual art, there is no inherent or tangible difference between an original and a copy. Obviously, this is not so for paintings, sculpture, etc. -- one-of-a-kind art objects. And authors of one-of-a-kind works have not conventionally relied on copyright to collect licensing fees or royalties, since there are no mass-produced copies that can be sold -- only originals. Hence, painters and sculptors have used different earning models, such as the gallery system, for selling their work.
Patrick Cariou comes out of photography culture, which is part of mass culture. Photography culture lives and breathes by licensing agreements and royalties, and through copyright. Richard Prince, comes out of a moment when artists were using “appropriation” as a tool to comment on and criticize mass production. His work has always referenced his source material, and hence mass culture itself. Part of the value of his work today, around which much of the case revolves, is based on his reputation as a critic of and commentator on mass culture.
For the disputed “Canal Zone” series, Prince took copies of photographs from Yes Rasta, Cariou’s book on Rastafarian culture (PowerHouse Books, 2000, $60). In other words, Prince re-used photographs that had been mass-produced in the form of a book, in order to make his collage-like paintings. To say that Cariou’s work was used as “raw material” is not to demean the work; it is simply a factual description of how the photographs were used. The “Canal Zone” series also incorporates works by other photographers, including some by the underground filmmaker Richard Kern. Prince took more than 40 of Cariou’s images, scanned them, blew them up, affixed them to enormous canvases, collaged and squeegeed them together with other elements, oil stick and paint, producing one-of-a-kind objects. These large-scale collaged paintings reference their sources by re-instituting them as singular objects. On that basis alone, Prince’s work is transformative -- a determining factor that U.S. District Court Judge Deborah A. Batts unfortunately chose to ignore.
What leaves me breathless is one particular irony, among the many that surround this case, regarding Judge Batts’ decision in the awarding of damages, which include, potentially, the destruction of the offending works. The very existence of Prince’s “Canal Zone” series is apparently now in peril, in part because no one seems to be able to tell the difference between a painting, which is a one-of-a-kind object, and a photograph, which is by definition mass-producible.
Hence the irony. Some things cannot be easily destroyed, and whatever Prince may have done with the mass-produced copies of Cariou’s photographs, the photographs themselves remain intact. But one-of-kind art objects, once disposed of, are deleted forever.