NEWSgrist - where spin is art

The Cariou Effect

© Sarah Morris
Parrot [Origami], 2009
Household gloss paint on canvas
214 x 214 cm. Image via Artnews.

A few days after Artnet posted my Op-Ed, The Copyright Bungle, excoriating the decision in Patrick Cariou's copyright infringement case against Richard Prince and Gagosian Gallery, I received an email from none other than Cariou himself. Why was he reaching out to me? Here was a fellow who had just been awarded millions of dollars in damages, not to mention the option to destroy the offending works. Many people saw and still see Cariou as the underdog: a lone, risk-taking freelancer in a case where the "villains" are established, wealthy and famous. Indeed, whatever happens in the appeal, Cariou is the clear winner in the court of public opinion, a forum in which my own objections stand out as leaning strenuously in favor of Prince, as I argue for the validity of appropriation and the urgent need to limit the reach of copyright in favor of free expression. Surely my history as someone who has continuously rallied popular support against overreaching copyright would make me a potentially "dangerous" customer for Cariou to contact. Would his lawyers have approved? Well, as a lawyer friend of mine once said: you'd be surprised how frequently people do exactly what their lawyers tell them not to do.

Gingerly, I responded to Cariou. He wrote back and I responded again. Our correspondence continued for eight days. For a while I dropped everything else. The transcript of our discussion, pasted at 10 point type into a Word document, is 30 pages long. We ran the gamut from combatative to friendly, and I came to admire his willingness to engage someone on the other side of the debate. He had everything to lose in this discussion, and nothing to gain.

There were several themes and arguments that we came back to repeatedly. Mainly, we talked about limits to free speech, and what in Europe is referred to as moral rights in intellectual property law, which fortunately is not recognized as a part of copyright law in the United States. Before long, it became clear that for Patrick, this case was one of moral rights above and beyond everything else.

It was a stimulating, at times difficult exchange, but we parted friendly -  a real feat. As our conversation came to a close, I asked Patrick what he felt about my publishing the most interesting portions of our dialogue online. He asked that it be kept private - a wise choice! - and I have no wish to betray his confidence.

However, I reproduce here one short paragraph that I wrote at a heated point in our argument about the potential destruction of Prince's work awarded by the court. It resonates with the lawsuit recently brought against the painter Sarah Morris by a posse of origami artists:

 

Patrick,

The real destruction isn't about Richard Prince or his works. The real destruction is the chilling effect this decision has had on the free speech and free expression of a very broad array of artists -- not just those who experiment and play in the realm of collage and new media technologies, but also those of us who make one-offs: painters, sculptors, installation artists and anyone who comments on life and reality (whether that be inner or exterior 'life') through direct references -- including 'appropriated' references -- to the world around them, its art, its images, and its representations. All of us, really.

 

Indeed, regardless of what happens in the appeal, much of the damage to our capacity for free expression - our sense that we have a right to speak our minds, to experiment, play and to make art without looking over our shoulders - has already been done. I imagine that the origami artists feel empowered by Judge Batts' decision, not to mention their lawyers who now have a real basis by which to encourage their clients to sue, or at least to intimidate through cease & desist letters. How to undo this damage? How do you roll back a chilling effect of this magnitude?

I will end with a few thoughts from a recent post on Cablegram, the blog of the artist and writer Eric Zimmerman, (who earlier wrote an insightful piece about the Cariou v Prince decision on Glasstire):

In a broad sense Cariou v. Prince continues to be about allowing all artists the freedom to use existing images and materials within their work, and subsequently, the consistent, well-reasoned application of copyright law. Readymades and photomontage, pop artists’ engagement with mass media, collage, all represent tried and true strategies of appropriation in which their practitioners are granted exactly that. Does this mean all appropriative work is good and you have to like it? Certainly not, but taste is not the point. Any way you look at it Cariou v. Prince highlights the thorny issues still surrounding appropriation, the results of poor application of copyright law, and the narrowing scope of fair use. Let’s hope that in the future all of these issues move towards more intelligent, nuanced resolutions.

Why "Copyright Will Make Better Artists" Is a Stupid Idea

Image Via

 

When I was an undergraduate and reading a lot of feminist theory and literature for the first time, there was one image repeatedly conjured to demonstrate the misogynist, wrongheaded attitude of the healthcare industry to childbirth: that of a pregnant woman in labor, on her back with her legs up in stirrups. The accompanying story decried the position as one that was devised not for the health and safety or ease of delivery for the mother and her child, but for its convenience to doctors. To wit:

 

For the last century, society’s relationship with normal childbearing has been tragically flawed because it was based on faulty assumptions. The central and erroneous belief was that childbearing in healthy women was fundamentally and inextricably dangerous. This false assumption was based on the notion that a woman’s reproductive biology is inherently defective, or as Freud would say, biology is woman's (unfortunate) destiny. [..] This notion gave rise to the idea that normal childbirth had to be made safe by the medical profession through the corrective use of powerful drugs and risky surgeries. The laboring woman would be saved by becoming a passive patient delivered by others. [link] 

What I meant was:

In the new century, society’s relationship with art has become tragically flawed because it is based on faulty assumptions. The central and erroneous belief is that anything made by unregulated artists is fundamentally and inextricably dangerous. This false assumption is based on the notion that an artist's ability to create is inherently defective.... [...] This notion gave rise to the idea that creativity had to be made safe by the legal profession through the corrective use of powerful licenses and preemptive laws. The laboring artist would be saved by enforcing a system of controlled environments where creative products can only be licensed and delivered by lawyers.

Saying that copyright will make better artists is like saying that forceps births makes for healthier babies. Looking to Patrick Cariou for wisdom about copyright is like looking to the RIAA for guidance on fair use. Glib articles that promote the forceps birth model of creativity only reinforce ignorant attitudes about art.

Toward a Fair Use Standard (just a reminder)

In 1990, The Hon. Judge Pierre Leval wrote the breakthrough article, "Toward a Fair Use Standard," 103 Harv. L. Rev. 1111 (1990), in which he proposed the term "transformative use" (emphasis mine):

 

"The use must be productive and must employ the quoted matter in a different manner or for a different purpose from the original. A quotation of copyrighted material that merely repackages or republishes the original is unlikely to pass the test; in Justice Story's words, it would merely "supersede the objects" of the original. If, on the other hand, the secondary use adds value to the original -- if the quoted matter is used as raw material, transformed in the creation of new information, new aesthetics, new insights and understandings -- this is the very type of activity that the fair use doctrine intends to protect for the enrichment of society. Transformative uses may include criticizing the quoted work, exposing the character of the original author, proving a fact, or summarizing an idea argued in the original in order to defend or rebut it. They also may include parody, symbolism, aesthetic declarations, and innumerable other uses."

Via

 

To be continued...

Cariou vs. Prince: THE COPYRIGHT BUNGLE

 

This Op-Ed was originally published in Artnet Magazine, March 31, 2011.

 

A photo by Patrick Cariou at left, and its adaptation by Richard Prince at right

Cariou vs. Prince: THE COPYRIGHT BUNGLE

by Joy Garnett

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.

More thoughts on the Cariou/Prince Affair

RICHARD PRINCE
Back to the Garden, 2008
Inkjet, acrylic and collage on canvas
80 x 120 inches (203.2 x 304.8 cm). Image courtesy of Gagosian Gallery, NY.

 

What follows is brief interrogation of myself on the subject of the Cariou/Prince Affair, by Bernard Klevickas, first posted as comments on Ed Winkleman's blog (March 28, 2011):


Bernard Klevickas: [Patrick] Cariou took the photos. He did the legwork to produce the images. He wanted them displayed a certain way and (as I understand it) has a right to see through his vision commercially of the photographs as he wants.

Joy Garnett: Of course. And no one, not [Richard] Prince, nor his appropriations, are stopping him from continuing to do so. On the other hand, Cariou's lawsuit inflicts those very same conditions of obstruction upon Prince and his work, and more.

BK: Prince appropriates the images and forever changes the way they will be interpreted, no matter how Cariou then decides to display them the context has been altered by Prince.

JG: Good point. However, no image is "safe" from being experienced in contexts other than those intended -- that lies far beyond the artist's control, and always has. Context cannot be nailed to your work. As the world changes, so do conditions for experiencing art, and so does the meaning of the artwork, for better or for worse. It is true that photojournalists in particular tend to want to control the context in which their work is experienced. This has a lot to do with the history of photojournalism and news agencies/wire services. But where this control impinges upon free speech -- either critique by others or use in others' works that reference them -- this desire to control context is overreaching. Imho artists really need to learn to defend themselves from this kind of overreaching control, not censure their own work and process in order to preempt it.

BK:  Perhaps he could have made money off of the new context of the works, but believing he had a reasonable case against Prince he chose court.

JG: Yes, of course he could have just piggybacked on Prince's success. In fact, he already has :-) You opt to go to court because you feel you've been victimized. "Feel" is the operative word here. Such decisions to litigate are fueled by emotion; and yet "feeling" you've been victimized doesn't necessarily mean you have been. In this instance it looks like there were other things going on as well, including a dealer working with Cariou in order to squeeze Prince/Gogo for some $$$.

BK:  Considering "Molotov Man" as an example the original photographer did not intend (as I understand it) to display her photo of "Molotov Man" as art in a gallery.

JG: The painting is entitled "Molotov". And actually, Susan Meiselas has displayed her photograph, entitled "Esteli, 1979", in galleries and museums on multiple occasions; ("Molotov Man" was how she referred to the figure in the shot). Like lots of crossover photojournalist/artists, she has shown many of her photographs in art galleries for decades.

Please remember to distinguish her photograph from my painting -- this will also help to distinguish Cariou's photographs from Prince's paintings in this discussion. And so: I never displayed her photograph; I displayed my painting. Prince never displayed Cariou's photographs; he displayed his own paintings.

 

L: Joy Garnett: "Molotov" (2003) 70 x 60 inches. Oil on canvas.

R: Found jpeg (source image).

 

Image Via

BK:  Plus this was a single image of which you found online and then cropped to focus only on the molotov cocktail thrower.

JG: Nope: I found the source image for my painting as a pre-cropped, uncredited jpeg, on a blog. I grabbed the entire cropped jpeg and used that as my source image. Sometimes I crop; back then I didn't because the idea was to let the actual paint and act of painting do the transforming...

BK: Prince used many (40, I think) images from the book (and the images were only in book from, not published online, I think).

JG: Prince used a large number of Cariou's Rasta images, all found in the book Yes Rasta published in 2000. I think he used 41 or 44 images in all. He also took a large number of Richard Kern's cheesecake photographs and worked them onto the same canvases as the Rasta scans. He did a number of things to tweak those images, transforming them into one-of-a-kind objects, from his mass-produced photographic sources. Prince's work has always commented on mass culture -- it all makes sense.

What's really interesting is that people willfully choose to ignore what Prince did to the images once he scanned them, as if he took Cariou's photographs and nailed them to the gallery walls. So if you never saw them and don't believe me, here's a brief description on the Gogo site:

"Some images, scanned from originals, are printed directly onto the base canvas; others are 'dragged on,' using a primitive collage technique whereby printed figures are roughly cut out, then the backs of those figures painted and pasted directly onto the base canvas with a squeegee so that the excess paint squirts out on and around the image. On top of this are violently suggestive swipes and drips of livid paint and scribbles of oil-stick crayon which, together with the comic, abstract sign-features that mask each figure's face...much of what shows up on the surface is incidental to the process."

 

This brings up something else that's pretty important, and that distinguishes the Cariou photos from the Prince paintings: that thing called "facture" -- the sense of how a painting was made -- what went into it, "the hand", etc., and history, the history of painting and visual media itself. This comparison offers another way to look at Prince's work. For anyone who got to see them in the flesh, their facture was pronounced and inescapable. (This, obviously, does not come across in jpegs). And with straight photography such as Cariou's, there is no facture at all; such photographs opt instead for the myth of "transparency", discarding facture altogether.

That and the fact that mass produced photographs are fundamentally different entities from one-of-a-kind paintings should give anyone pause before jumping to the conclusion that Prince simply took someone's photos and threw them up on the wall and sold them for millions. Hey, now that would be stealing ;-)

BK: You clarified some of the things I (admittingly) was uncertain about. This still does not change my opinion. Even Prince uses the word stealing: "I knew what I was stealing 30 years ago but it didn’t matter because no one cared, no one was paying any attention." But, I suppose we could say he can't incriminate himself. I still see it as Prince and Gagosian profiting largely at Cariou's expense and Cariou wanted some of those profits. Should all artists now be paranoid of being accused of theft? Hell no. Carou is David beating Goliath.
Why should Goliath always win?

JG: Why should Goliath always win? This indeed expresses the real reason why so many people -- artists included -- want to see Prince go down. But it has nothing to do with the case, which is still dangerous precedent.