Courtesy of the artist and Mary Boone Gallery, Licensed by VAGA, New York
David Salle's "Cheesehead," another painting in which the author makes an appearance.
By MICHAEL RIPS - Published: June 16, 2012
NONE of the thoughts that occurred to me on that tranquil afternoon when a slice of Swiss cheese was deposited on my face were so exotic as to include the notion that, 15 years later, I would listen to judges debate whether I should be allowed to remove the cheese and set it on fire.
And yet, such exotic questions are now before the United States Court of Appeals for the Second Circuit, where a three-judge panel will rule on a case with serious implications for the visual arts.
In the fall of 2008, the Gagosian Gallery in New York exhibited a series of works by Richard Prince. Those works incorporated photographs that Mr. Prince had found in a book by the French photographer Patrick Cariou. The photographs were of Rastafarians living in the mountains of Jamaica. Mr. Prince borrowed one such photograph — a Rastafarian against a dense growth of plants — covered the man’s eyes with blue circles and placed an electric guitar in his arms.
Mr. Cariou sued Mr. Prince for copyright infringement.
For me, the case recalled that afternoon, when I stood before a painting in the studio of David Salle, one of the most influential artists of our time. Mr. Salle had based the painting on a photograph of me in a black suit and tie, dignified, staring into a mirror. He was in the process of making “finishing touches.” I had already informed my father-in-law, whose suit I was wearing (a suit, he told me, that had brushed against the sleeve of Robert Kennedy on a hotel stairway in Cleveland), of the imminence of the portrait.
As I was about to compliment Mr. Salle on the likeness of the portrait to the photograph, he pasted the perforated wedge on my face. And that is how a photograph of me, as incorporated into one of Mr. Salle’s paintings, was exhibited at the Lehmann Maupin Gallery, and that is how it remains to this day — “Rips in the Mirror.”
From this, you no doubt understand my sympathy for Mr. Cariou or, at least, the Rastafarian.
Mr. Prince was not as sympathetic. He fought the lawsuit, claiming that he had sufficiently altered Mr. Cariou’s photographs to bring the works exhibited at Gagosian Gallery within the fair use doctrine, which allows artists to borrow from other works so long as they give a new expression or meaning to the original work. But the trial court rejected Mr. Prince’s argument, thereby exposing him to liability for the millions of dollars he had earned from the exhibition and giving Mr. Cariou the right to destroy the unsold paintings.
And the court did not stop with Mr. Prince. Because Mr. Prince was known to use images from other sources, the gallery and its owner were held liable for failing to investigate Mr. Prince’s paintings for copyright violations.
This caused museums across the country to file a brief with the court of appeals. They argued that they would be forced to hire lawyers to investigate their collections for works containing borrowed images, and given the ubiquity of such images in 20th-century art, the cost to the museums would be unsustainable. The more likely, though no less troubling, alternative is for museums to censor what they exhibit.
Should the law require this?
The answer revealed itself to me when, a couple of years ago, “Rips in the Mirror” — one of several paintings Mr. Salle did of me, a couple with cheese — came up for auction. Deciding to end my public association with an item more typically paired with a plate of crackers, I resolved to purchase the painting and retire it. When I explained to the young woman at the auction house what I was prepared to pay for the painting, she chuckled and then, politely, replied, “I am sorry, sir, but recent sales for his group have been quite strong.”
“His group” was what art critics and collectors now refer to as the “Pictures Generation” — a movement of artists who, skeptical of the artistic as well as commercial images that surrounded them, appropriated those images into their own work and then subverted them. It was a strategy that drew upon the early works of James Rosenquist.
The strength of interest in the Pictures Generation has caused the prices of their works to reach sums in the millions — stunning sums, the very sums that thwarted my attempt to remove the cheese portrait from circulation.
Richard Prince is a Pictures Generation artist.
Patrick Cariou is not. He is an ethnographic photographer, and it is the sort of photographs he takes that have been some of the subjects of appropriation and subversion by the Pictures Generation. For this reason, the markets for Mr. Prince and Mr. Cariou are not just distinct; they are conflicting. In other words, no one heading out to purchase an ethnographic photograph by Mr. Cariou (or anyone else) was going to be diverted by the Prince show at Gagosian.
And that should be the answer to the legal question. Since Mr. Prince caused no economic injury to Mr. Cariou, despite his claims to the contrary, Mr. Prince should not be required to turn over his profits (or works).
So, too, with the Salle painting. It is David Salle and the artistic movement with which he is associated, and to which he has greatly contributed, that give value to his paintings — and not, sadly, my image. For those who believe otherwise, I have boxes of old photographs I would be happy to sell.
Michael Rips is a lawyer and the author of “Pasquale’s Nose: Idle Days in an Italian Town.”
A version of this op-ed appeared in print on June 17, 2012, on page SR5 of the New York edition with the headline: Fair Use, Art, Swiss Cheese And Me.