© 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:
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.