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A Search for Comity in the Intellectual Property Wars: symposium at The New York Institute for the Humanities at NYU, April 28-30, 2006 [slides, audio, transcripts]
download the report [PDF]
I've posted several recent articles on the Richard Prince appeal below: one is from Greg Allen of greg.org, another from Rachel Corbett of Artnet; notable is the statement and amicus brief filed by the Warhol Foundation. Included are links to both the PDF brief and the 135-page appeal. The images, with the exception of the painting by Prince, are taken from the amicus brief.
In case you missed it, the appeal was not dismissed:
In a closely watched visual-arts copyright case, a federal appeals court ruled on Wednesday to permit an appeal by the artist Richard Prince, who was found in March by a lower court to have unlawfully used images by a French photographer to create a series of collages and paintings.
The original decision, by Judge Deborah A. Batts, found in favor of Patrick Cariou, whose book “Yes Rasta,” featuring portraits of Rastafarians he took during several months in Jamaica, was published in 2000. According to the suit, Mr. Prince used 41 or more of the pictures as the basis for a body of work he called “Canal Zone,” which was shown in St. Barts and in a 2008 exhibition at the Gagosian Gallery in Chelsea. According to the suit, a gallery that was planning to show Mr. Cariou’s photographs canceled that exhibition after learning that Mr. Prince had already created works based on the photographs.
Mr. Prince has argued that his use of the photographs should be allowed under fair-use exemptions to copyright protections, which allow limited borrowing of protected material for purposes like commentary, criticism, news reporting and scholarship. But Judge Batts wrote that for fair-use exceptions to apply, a new work of art must be transformative in the sense that it must “in some way comment on, relate to the historical context of, or critically refer back to the original works” it borrows from. 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.
Mr. Prince testified in the case that he had no interest in the original meaning of the photographs he used. In creating the “Canal Zone” works he mainly used the imagery as a way to make references to painters like Willem de Kooning and to connect the works to a post-apocalyptic screenplay he was planning that featured a reggae band. Judge Batts ordered all unsold copies of the “Canal Zone” paintings and other related works to be impounded; additionally, she ordered that the gallery inform anyone who already owned copies of the Prince works that it would be a violation of copyright laws to display them.
The United States Court of Appeals for the Second Circuit denied Mr. Cariou’s request to dismiss Mr. Prince’s appeal, writing that the questions raised by the case remained “a continuing controversy capable of redress by this court.”
via greg.org (November 3, 2011):
I've tweeted on this a bit already, but it's really worth repeating: Richard Prince's appeal of the Patrick Cariou copyright infringement decision is a really great read. The brief was filed last week, and I finally got around to reading on Halloween night. I find it makes a very clear and persuasive argument for throwing out Judge Batts' sweeping ruling, and it's a nice, not too esoteric discussion of appropriation and fair use as well.
Basically, Prince, his new lawyers, and Larry Gagosian argue that Judge Batts wrongly applied the prevailing legal standards for fair use, especially the most recent, relevant case which had been before the same court, Blanch v. Koons.
I think I've written before that Prince's work, and his first-round defense, relied very heavily on Koons's winning argument that an artist's transformations of size, scale, material, and context were sufficient for fair use. But their briefs almost never cited Blanch and did not make that transformative use argument clearly or well. That has changed.
Prince's lawyers also argue that Batts overreached and erred by finding all 30 of Prince's Canal Zone works to be infringing, regardless of what, how, or how much of Cariou's imagery they contained. And that it's wrong to force Prince to hand over all the artworks to Cariou when the settled precedent of monetary compensation exists.
I think that, at the very least, the court will find that each painting must be evaluated, and that the court will have to decide Prince's transformative efforts. While I would love to publish such a document, because it would just be the best kind of worlds-colliding art criticism around, I suspect a check will be cut before the judges take out their rulers.
I could rattle on about this all day, but why not just read it yourself? Here is a copy of Prince's filing, which I'll host on my Dropbox for a while. The 135-page ruling has a lot of very nice, full color illustrations and clocks in at around 7mb.
And in even more interesting news, Joy Garnett just gave me a heads up that the Warhol Foundation has actually filed an amicus brief in Cariou v. Prince, warning the courts that if Judge Batts' ruling were to stand, it would put works by other artists in jeopardy, and would cause "such uncertainty in the field as to cause a chilling effect on the creation of new works." I expect I'll come back to this after I read it all, but the Foundation's brief defends Prince's work as part of a broad, artistic history of appropriation, quoting, and collage. Should be interesting. The Foundation's 57-pg brief [pdf] is linked directly here.
Previously: the five most ridiculous things about the Richard Prince copyright decision
The Richard Prince decision? You're soaking in it!
Richard Prince's Spiritual America
"THE WITNESS: This could be a cool book."
"The Movie is called 'Eden Rock'"
For Immediate Release
Warhol Contact: Michael Straus, Chair, 205.933.7000
Joel Wachs, President, 212.387.7555
Stanford Contact: Anthony Falzone, 650.492.0765
The Andy Warhol Foundation for the Visual Arts has filed a brief in New York urging a federal appeals court to reverse a lower court’s ruling that thirty paintings by the artist Richard Prince infringe copyrights in photographs owned by Patrick Cariou. The lower court’s ruling led to the seizure of Prince’s work and subjects it to potential destruction. The Foundation is being represented by attorneys from Stanford Law School’s Fair Use Project, New York City attorney Virginia Rutledge, and Bingham McCutchen LLP.
Prince’s paintings are part of his Canal Zone series, and include images of Rastafarians found in Cariou’s book Yes, Rasta. In a ruling issued last March, U.S. District Judge Deborah A. Batts held Prince liable for infringement, concluding that his appropriation of images from Cariou’s photographs was not protected by the “fair use doctrine,” a legal principle that is designed to balance copyright protections with rights of artistic expression. Michael Straus, the Warhol Foundation’s Chair, said “the position of the Foundation is that the District Court gravely misconstrued that doctrine and in so doing not only jeopardized the status of existing works by a range of artists but also created such uncertainty in the field as to cause a chilling effect on the creation of new works.” Among other things, as the Warhol Foundation explains in its brief, the appropriation of images to create new works is part of an important artistic tradition that goes back to Pablo Picasso, Marcel Duchamp, and notably includes Andy Warhol’s own use of photographic and other images in his works.
“The Warhol Foundation’s primary mission is to advance the visual arts,” explained Joel Wachs, the Warhol Foundation’s President. “The Foundation encourages creativity over a wide range of artistic expression and therefore does not object to other artists building upon Andy Warhol’s work. At the same time the Foundation owns valuable copyrights in those works that provide substantial revenue for the Foundation’s grant making and other activities. In its own decisions the Foundation balances the need to provide strong copyright protection with the need to protect the right to create new art. We think the District Court failed to understand that balance and therefore urge the Court of Appeals both to reverse that decision and to set forth guidelines that will promote rather than undermine creativity in the arts.”
“The fair use doctrine is the most important tool courts have to ensure that copyright does not choke the creativity it is supposed to foster,” said Anthony T. Falzone, Executive Director of the Fair Use Project and counsel for the Foundation. “Artists should not have to hire a lawyer to make art, and we’re suggesting an approach that provides clearer protection for the free expression interests of artists and the public.”
A PDF version of the Warhol Foundation’s brief is available here.
via Artnet Magazine (Nov 4, 2011):
Richard Prince may have finally found the arguments he needs to prevail in the controversial copyright case he’s been fighting since 2008. A 92-page appeal filed by law firm Boies, Schiller & Flexner on Oct. 26, 2011, makes a strong case that circuit court judge Deborah Batts ruled against the appropriation artist -- and in favor of French photographer Patrick Cariou -- in error this past March.
The appeal refutes Cariou’s claim that when Prince appropriated portraits from his book Yes, Rasta for a series of 30 collage-paintings titled “Canal Zone,” it harmed Cariou’s market and infringed on his copyright.
"Canal Zone" represents "a case of the transformative use of existing 'raw material' to create 'new information, new esthetics, new insights and understanding'," the brief claims in its introduction.
Prince’s attorneys, Jonathan Schiller, Josh Schiller and George Carpinello, frequently cite the 2005 copyright case Andrea Blanch v. Jeff Koons, in which the advertising photographer sued Koons -- and lost -- after the artist used one of her images of a woman's leg as source material for his painting Niagara (2000). In that case, the judge decided that Koons’ “purposes in using Blanch’s image are sharply different from Blanch’s goals in creating it,” and that the artist’s picture constituted fair use, which provides an exception to copyright protection. Prince’s lawyers appeal to the same logic, arguing that Prince’s appropriation of Cariou’s photos was a significant and dramatic transformation.
“The fair use doctrine is the most important tool courts have to ensure that copyright does not choke the creativity it is supposed to foster,” said Anthony Falzone, a lawyer for the Andy Warhol Foundation, in a statement announcing that the organization has filed an amicus brief in support of Prince. Warhol Foundation chair Michael Straus noted as well that the decision "created such uncertainty in the field" that it caused "a chilling effect on the creation of new works.”
Prince's brief argues that Cariou’s book of photographs presents "romantic, traditional portraiture" that depicts its Rastafarian subjects as “noble savages” living in a peaceful, idealized community. Prince's "Canal Zone" artworks, by contrast, with their pasted-on images of nude women, painted guitars and caricatured faces, suggest the opposite -- a post-apocalyptic world of hypersexuality, chaos and rock and roll. Prince, according to the appeal, is “critiquing [Cariou’s] naïve vision of that beauty.”
In her original decision, Judge Batts ruled that Cariou's copyright was infringed because Prince failed to comment on Cariou's photos, saying that Prince didn’t “really have a message” and has “no interest in the original meaning of the photographs he uses.”
This finding is answered with an argument that seems to come straight out of postmodernist picture theory, i.e. that Prince, as an artist, should not be required to give the final word on his own artworks. Prince's "reluctance to impute a definitive artistic meaning is consonant with the core post-modern belief that an artist’s intent is irrelevant because an artwork’s meaning is manifold, malleable, and does not have one single meaning in the eye of the viewer,” according to the brief.
That said, Prince’s lawyers take on that interpretive task themselves, offering a reading of Prince's artwork that is, of course, quite different than the meaning Cariou gave to his photographs. Through Prince’s paintings, the brief claims, Cariou’s utopian Rasta world “is now debased, plunged into the degraded and commercialized space of sex, drugs and popular music that American culture stereotypically associates with Rastafarians.”
Another major part of the brief attacks Cariou’s claim that Prince’s appropriation cost him commercial opportunities. Cariou’s publisher, PowerHouse, Inc., sold 5,791 copies of Yes, Rasta, according to the court papers, and he earned $8,087.75 in royalties. The book, which has been out of print since before Prince took the images, went up in price from $50 to between $60 and $100 “sometime after this litigation was commenced.”
The appeal goes on to point out that since Yes, Rasta’s publication in 2000, Cariou has sold just four prints of his photographs, while Prince quickly sold eight of his “Canal Zone” paintings -- for between $400,000 and $2.3 million apiece. What's more, Gagosian Gallery, a co-defendant in the suit, apparently invested $434,730 in marketing the works. Right now, the 21 unsold paintings are locked up in a Long Island City warehouse pending the appeal. If Cariou wins, Gagosian’s investment and the remaining art works could all be destroyed, if Cariou so chooses.
Until then, we’ll have to wait and see. Cariou’s counsel files its opening brief Jan. 25, 2012.