Richard Prince: Specially Round Midnight, 2008, from the Canal Zone series.
Below are excerpts from two articles about the much-anticipated Richard Prince appeal, one by Julia Halperin of ArtInfo, the other by Peter Friedman, Ohio IP lawyer and author of the blog Ruling Imagination: Law and Creativity, posted on the same day.
(Artnet's Rachel Corbett, who has been unflagging in her coverage of the case, got the jump on them by one day: Cariou v. Prince: CARIOU FIGHTS COPYRIGHT APPEAL, Artnet, Jan 25, 2012).
Halperin's thorough round-up additionally points us to some irresistible "gossipy tidbits", while Friedman includes copies of the latest brief from the Appeal (1/25/2012) as well as the amicus brief filed in support of Prince by the Warhol Foundation in November 2011.
Read both in full; here are excerpts:
New Twist in Richard Prince Copyright Case Asks Whether Art Law Is in the Eye of the Beholder
By by Julia Halperin
Published: January 26, 2012
The three-year legal battle between Richard Prince and Patrick Cariou isn't over yet. Cariou's lawyers voiced their opposition to Prince's appeal of the historic 2011 copyright decision in a brief filed yesterday in the United States Court of Appeals for the Second Circuit. The takeaway? It's not easy to mix copyright law and art history.
Perhaps the most interesting question highlighted in the filing is this: should the art establishment's critical reading of an artist's work sway a judge's ruling? According to Dan Brooks, a partner at Schnader Harrison Segal & Lewis and counsel for Cariou, the answer is no. "Fair use is an affirmative defense, so it's something that the defendant has to prove. It's true that some of the cases evaluate whether the comment or satire is objectively perceivable," Brooks told BLOUIN ARTINFO. "But courts only do that after the defendant first says he subjectively intended to create a parody or satire."
So, does it matter if outside observers perceive a work as parody or commentary if the artist never frames it as such? The Andy Warhol Foundation challenges Brooks's assertion in an amicus brief filed in support of Prince, claiming that "transformative meaning must be assessed first and foremost by observation of the work itself." This argument is likely to be fleshed out by Prince's own lawyers in their response. The legal battle is in no way over: after Prince's lawyers file their brief, Cariou's lawyers will have the opportunity to reply.
via Ruling Imagination: Law and Creativity:
By Peter Friedman
January 26th, 2012
Patrick Cariou’s lawyers have filed their brief (embedded below) in opposition to Richard Prince’s appeal of the decision holding that Prince’s appropriation’s of Cariou’s photographs constituted copyright infringement. Writing in artnet, Rachel Corbett explains, among other things, that Cariou’s legal team
is banking largely on the claim that Prince’s work failed to comment on or satirize Cariou’s photographs — a common objection against applying the fair use exception to copyright law.
While Prince’s lawyers, Boies, Schiller and Flexner, convincingly argue that “Canal Zone” is “transformative” of the original works, Cariou’s lawyers say that’s not enough.
As I wrote nearly a year ago, I believe it would be absurd to conclude whether Prince’s use of Cariou’s work was transformative based on Prince’s words. Artist’s are not particularly gifted at putting into words what their works mean. Why, after all, would we need their work if their words would suffice?
The passageway provided by art is very wide. No single interpretation of art is ever “right,” not even the artist’s own. He or she can tell us the intent of the work, but the actual meaning and significance of the art, what the artist achieved, is a very different matter. (It is pitiable to hear the grandiose discussions of artists’ work by the least talented of our contemporaries.) We should listen to the appreciations of others, but then we should put them aside and advance toward a work of art in the loneliness of our own truth. Each of us encounters the work alone, and how much we receive from it is wholly the effect of our will to accept this responsibility.
What was Jackson Pollock’s purpose in painting Lavender Mist? Van Gogh’s in painting The Irises? Haven’t we accepted by now the limitations focus on artistic intention would impose on our appreciation of art? Nevertheless, in the decision enjoining the publication of a “sequel” to The Catcher in the Rye, the judge was significantly influenced by the fact the author and his representatives had described the work in words that didn’t fit the legal standard they wanted to meet:
Until the present lawsuit was filed, Defendants made no indication that 60 Years[the new work] was in any way a parody or critique of Catcher [in the Rye]. Quite to the contrary, the original jacket of 60 Years states that it is “. . . a marvelous sequel t one of our most beloved classics.” . . . Additionally, when initially confronted with the similarities between the two works, rather than explaining that60 Years was a parody or critique of Catcher, Colting’s [the new work’s author] literary agent, Mr. Sane, contended that 60 Years “is a completely freestanding novel that has nothing to do with the original Catcher in the Rye.” Opinion and Order at 16, n. 3.
Colting and his agent, obviously, should have called his work a parody and critique, not a sequel or a “freestanding novel.” Plainly, they had not been sufficiently counseled by lawyers who could have put the proper words in their mouths. It’s odd to think that being sufficiently versed in the mere words that would be consistent with the legal outcome you seek should make a difference, though. No matter what an artist said, his work would be the same. [NEWSgrist Editor's note: it IS odd that the ruling in favor of Salinger that barred - banned - publication and distribution of Colting's book in the US was delivered by none other than Judge Batts, the same Judge who ruled in favor of Cariou, and awarded the destruction of Prince's infringing works as part of damages.]
In the same way, it seems odd that Prince’s refusal to articulate an artistic intent should be a determinant of the legitimacy of his artwork. The Amicus Brief filed in support of Prince’s appeal by the Andy Warhol Foundation for the Visual Arts (also embedded below) makes precisely these points (at 31-34; hyperlinks added):
Ultimately, the meaning of art is defined by the viewer, not a judge, or even the artist himself. A viewer’s reaction to a work of art is shaped by the viewer’s personality, emotions, values, experience and knowledge. So while it is plainly dangerous for those trained in the law to judge the worth or meaning of art, see Campbell, 510 U.S. at 582-83, it is equally dangerous to pretend the meaning of art can be defined solely by the intention of the artist herself, much less her ability to articulate that intention to the satisfaction of judges and lawyers. See Pleasant Grove City v. Summum, 555 U.S. 460, 476 (2009) (recognizing “it frequently is not possible to identify a single ‘message’ that is conveyed” by a government monument, and the sentiments it expresses “may be quite different from those of . . . its creator”); Hurley v. Irish-Am. Gay Lesbian & Bisexual Group of Boston, 515 U.S. 557, 569 (1995) (“a narrow, succinctly articulable message is not a condition of constitutional protection” for expressive speech).
That is not to say the testimony of the artist is irrelevant. If, as in Blanch [v. Koons], the artist can explain the intended meaning of his work and how it differs from the work he borrowed, that testimony may be quite informative. But the failure to provide an explanation as polished as the one Jeff Koons provided in Blanch cannot be fatal. If it were, then every artist who works within this tradition will be forced to concoct a narrative that appeals to legal sensibilities, and the law will succeed in protecting only those artists who are scripted by counsel. [...]