in a brief recap of the ongoing Prince v. Cariou controversy, Caroline Camp over at the Cardozo Art Law blog, (associated with the Benjamin N. Cardozo School of Law at Yeshiva University), pointed to an article I wrote some months back for Artnet (thank you for the mention and link). Professor Camp also links to and quotes Rachel Corbett's recent, thorough report and update on Artnet, regarding the recent appeal. Makes me wonder: do IP lawers tend to draw all or most of their knowledge of contemporary art from Artnet? (Walter Robinson, are you listening? the pressure is on!)
While the Cardozo post gives us some food for thought, it manages to be dismissive and noncommital at the same time. Too bad. I'd think if you're going to blog about the rollercoaster of current events in Art Law, you would be eager to take a few risks yourself and at least take a stand, if not a wild ride.
I've reblogged the post in toto below, my remarks inserted in [brackets]:
In March, this blog reported on the 2nd circuit's ruling on Patrick Cariou's lawsuit against appropriation artist Richard Prince. Batts granted summary judgment in favor of Cariou on the issue of copyright infringement. The court ordered Prince to destroy millions of dollars worth of his own artwork. Prince appealed.
[Note: the appeal had to be considered before damages could actually be awarded].
On September 15th, The United States Court of Appeals for the Second Circuit denied Mr. Cariou’s request to dismiss Mr. Prince’s appeal. The NY Times reported that the court indicated questions raised by the case remained “a continuing controversy capable of redress by this court.”
Rachel Corbett at ArtNet spoke with Prince's lawyer, Josh Schiller.
"At the heart of Prince’s appeal, according to Schiller, is Batts’ assertion that an artist must explain the meaning of his or her work in hindsight. She wrote that Prince testified himself that he doesn’t 'really have a message' and has 'no interest in the original meaning of the photographs he uses.'"
While it seems fair to say that fair use should not be determined by an artist's post-commentary, this doesn't answer all of Batts' criticisms. Specifically, Batts suggested that Prince's works failed to comment on Cariou's works themselves, as is required under the first prong of the fair use test, the 'the purpose and character of the use'.
[Required? Certainly the outcome of Blanch v. Koons says otherwise. Aside from the lack of a meaningful rationale behind this dated and rather narrow interpretation of the fair use first factor, one could also argue that this requirement of direct commentary would stand in the way of any 'transformative use' achieved through creative work processes (see Blanch v. Koons again). Transformative use means the creation of a new entity from a pre-existing one, whereby the new work supercedes (transforms or changes) the original's form and meaning. Whether the result can be traced back to the original or be said to comment on it is either academic, subjective, or irrelevant.
References and new meanings are moreover something that must be left to the discretion of the artists, when making art, and not judges and lawyers, (unless you are making law).
Or by contrast, one could argue the following: that a new work which appropriates or quotes an orginating work ALWAYS references it BY DEFINITION, but any instance of 'commentary' neccessitates interpretation on the part of the viewer, that the artists' intentions are secondary even where the latter is didactic (commentary and interpretation being joined at the neck)].
Indeed - the exhibit may provide interesting social commentary, but the fair use calls for commentary upon the original work itself. [ugh: see above!] According to Randy Kennedy at the New York Times, "That reading of the law was viewed as unusual by many copyright experts, who warned that it could have a chilling effect on art that relies on appropriation, a controversial but well-entrenched postmodern artistic strategy." [It would have a chilling effect on most any art, because all art derives or references pre-exisiting works of art, whether or not the artist intends to do so.]
Perhaps Prince really is making a commentary on Cariou's photographs themselves. [without intending to, I think it's obvious]. Joy Garnett at ArtNet gave an interesting review of the case from an artist's perspective (and suggested IP lawyers lack necessary understanding). [to wit]. Garnett sees appropriation art as commenting on photography as a mass-producible artform. [that's not how I 'see' appropriation art -- that's just art history]. Maybe Prince's works are truly one of a kind, [MAYBE?] whereas Cariou's are capable of reproduction and mass production, [They are mass produced: photographs that have been published - reproduced - in books are mass produced] but this idea shouldn't be confused with the actual elements of fair use or of originality under copyright law. [HUH?]
Presumably these issues will be further explored on appeal, and hopefully important steps will be taken toward clarifying fair use.
I will close with a comment written elsewhere by artist Phil King about the Cardozo post -- Phil has contributed illuminating comments to NEWSgrist before. Note: this comment was written in a personal, not a public, forum, hence was written in relaxed vernacular. I present it unedited:
What bothered me about this article ( and its surfaced slowly) was the assumptions about intentionality.. that Prince did himself in because he couldn't explain his intent within the terms demanded.
Now this cuts to the core of creativity with the mass of last centuries art and poetry kind of based on the principle finding something unknown.. now Prince does this by using known images .. but doesn't ( or doesn't allow himself to know) what he's going to come up with .. it is an experiment for him and, if we let it, an experiment for us too.
So given that it seems that he, and unintentional artists in general, will be kept off the witness stand because they can't or won't predetermine the nature of what they are doing.
We will have the farce of lawyers retroactively representing the creative process and the decision making involved in rigid terms.. the irony being that that process is actually a kind of crime against ANY predetermination.
Prince was found guilty because he refused to limit his decision making, his intentionality, to the legally conscious choices available to him. He came across as legally unconvincing because his intuitive thought processes do not fit within (by definition) predetermined legal terms.
It would have been simple enough for him to lie but he was admirably honest about the necessary stupidity needed to act outside of any script... to be creative, to simply put things together creatively for unknown reasons.
For more on art and intentionality, IP lawyer Peter Friedman discusses the relevance (or irrelevance) of artists' intentions, including those of Prince, at length on his blog Geniocity.