NEWSgrist - where spin is art

Artists opposing the PROTECT-IP / SOPA Act

Artists opposing the PROTECT-IP / SOPA Act [petition link at bottom]

Congress needs to hear from Artists!

The PROTECT-IP act would censor the net, in the name of protecting "creativity" (read: copyright). The law would let the government or corporations censor entire sites-- they just have to convince a judge that the site is "dedicated to copyright infringement."

The law could definitely pass, but it's close.

• * Artists (musicians, actors, writers, media-makers, etc) need to speak out against the law. Your statement is powerful because the corporate music and film lobbies push these laws in your name.
• * The copyright lobby say that this bill is written in your name to protect "creativity". If you're an artist that believes the government and corporations should not have the power to censor the internet in your name, you need to sign.

GO to the PETITION....

TO members of the United States Congress

We, the undersigned artists, have all been empowered by the Internet. Today, artists can reach large audiences and make a living because the Internet and digital tools have democratized the means to create, distribute, and promote our work.

We write to you today because we are concerned with S.968, the PROTECT IP Act (PIPA). Copyright law exists to promote the arts, but the new penalties in PIPA could be used against the new social media channels we depend on to make a living, and endanger freedom of expression.

PIPA creates new penalties against sites dedicated to infringing activity, but we worry it will be abused to attack legitimate sites we rely on. Many trailblazing social media websites could look like piracy havens to judges unfamiliar with the Internet. In the past, music and film companies have attacked many new technologies - like the VCR and MP3 player - claiming that they were tools for piracy. Recently, these same companies have sued video hosting platforms like Veoh and YouTube.

We use online video sites, file hosts like Dropbox and Mediafire, and online music communities like Soundcloud to host our work, collaborate with others, and build a community. We fund our work with services like Kickstarter and Flattr. We publish our work on sites like Tumblr, Wordpress, and Blogger. Any one of these services could be sued under PIPA.

Reminder: Panel on Appropriation @ the NYC Bar Association: Contemporary Art After Cariou v. Prince

Image from greg.org, Canal Zone Richard Prince YES RASTA:
Selected Court Documents (2011) 376 pages, $3.95 - $17.99

WHAT WE TALK ABOUT WHEN WE TALK ABOUT APPROPRIATION
Contemporary Art After Cariou v. Prince

A frank discussion of fair use and artistic practice

What: A free program open to all (no registration required)
When: Tuesday, December 13, 2011, 2:00 - 4:00 p.m.
Where: Great Hall of the New York City Bar Association
42 West 44th Street, New York City (between 5th and 6th Avenues)

Art and legal experts use similar terminology when talking about how artists use existing images, but are they speaking the same language?

Panelists for this program represent a range of stakeholders in the discussion. Audience participation and tough questions are encouraged.

Speakers:
Dan Cameron, Curator
Anthony Falzone, Stanford Fair Use Project
Claudia Ray, Kirkland & Ellis LLP
Walter Robinson, Artnet
Virginia Rutledge, PIPE Arts Group
Hank Willis Thomas, Artist
Moderator: Amy J. Goldrich

Program Co-Chairs: Amy J. Goldrich. and Lauren Gehrig
Presented by the Art Law Committee of the New York City Bar Association, John Cahill (Chair)

There Goes the Public Domain

Many works by non-US artists, such as Alfred Hitchcock, may soon be removed from the public domain [GALLO/GETTY]

 

via Al-Jazeera English:

Hold the line: Stop 'copyright rendition'
A US law challenged in the Supreme Court could remove hundreds of thousands of artistic works from the public domain.

BY Lewis Hyde 15 Nov 2011 13:23

GAMBIER, OHIO - In 1948, Twentieth-Century Fox released one of the Cold War's first anti-communist films, Iron Curtain, the soundtrack of which featured music by Russian composer Dimitri Shostakovich. Shostakovich himself probably never saw the film, so it was presumably under orders from the Stalin regime that his name soon appeared on a copyright infringement suit filed in the US. Had the suit succeeded, it would have effectively prevented moviegoers in the US from seeing Iron Curtain. But it did not succeed: Shostakovich's music then lay in our public domain, and once there, its rights holders had no say in how it could be used.

The public domain is a valuable guarantor of both free trade and free expression, which is why there is much at stake in Golan v. Holder, a case recently argued before the Supreme Court (the court's opinion has yet to be announced). The plaintiffs in Golan are challenging a 1994 law that will remove hundreds of thousands of works from the public domain by allowing foreign authors to revive their copyrights. Lawyers call this "copyright restoration", but it might better be called "copyright rendition": Congress has taken work that once lived freely among us and returned it to foreign masters.

The plaintiffs in Golan include orchestra conductors, educators, performers and film archivists who have relied on a stable, clearly-defined public domain for both business and creative practice. Now they can't. Low-budget orchestras that once offered Prokofiev, Stravinsky and Shostakovich can no longer do so; distributors that listed the early films of Federico Fellini, Fritz Lang, and Alfred Hitchcock have had to delete them from their catalogues; bookstores that offered cheap editions of Joseph Conrad, George Orwell, HG Wells and Virginia Woolf no longer stock them.

The public's unfettered use of such works is not the only thing that congress has compromised. Important freedoms are threatened as well. Copyright law, in its earliest days, was designed not just to give authors their due but also to assure public access to what had previously been a decidedly unfree press. When printing first arose in Europe it was almost always controlled by the state. In seventeenth-century England, for example, licencing laws stood in the way of all supposedly offensive books, and the Crown gave publishing monopolies to favoured printers who then dutifully provided a second ring of censorship.

This system began to break down late in the century under pressure from Protestant intellectuals. In 1694, when a new licencing act was being debated in Parliament, John Locke wrote to oppose both the act and the Crown monopolies. These together, he complained, destroyed the free market in books and were thus injurious to learning. Absent any competition, printing in London was "very bad and yet... very dear", controlled by "a lazy, ignorant" press that did little more than assure the Mother Church that she'd never be "disturbed in her opinions".

Locke never questioned the idea that publishers should have copyrights; he worried rather about their longevity. It certainly made no sense for any printer to have a corner on the work of Cicero, say, written a good 1,700 years ago. As for the publishers of modern authors, Locke proposed that the law "limit their property to a certain number of years after the death of the author, or the first printing of the book, as, suppose, fifty or seventy years".

Distaste for monopolies

The founding generation in the US was the direct heir of this British distaste for print monopolies. As the US constitution was being written, Thomas Jefferson wrote James Madison to say that the Bill of Rights ought to forbid "even... limited monopolies" outright, their benefit being "too doubtful to be opposed to that of their general suppression".

Madison disagreed but even so, when revisiting the subject late in life, he advised that "Monopolies... ought to be granted with caution, and guarded with strictness against abuse". Noting that the constitution had in fact allowed them for "the authors of Books and of useful inventions", he nonetheless underscored the constitution's demand that the grant be "limited". "A temporary monopoly... ought to be temporary ... Perpetual monopolies of every sort are forbidden... by the genius of free Governments".

Since its beginnings both here and abroad, then, copyright law has always limited the privileges it settles on authors. By so doing, it simultaneously secures two good but potentially conflicting ends. Most obvious and commendable, authors get ownership of their work and thus entry into the market and freedom from patronage. Less obvious, perhaps, but equally commendable, the limit on ownership gives birth to the public domain, that vast realm of expression to which we all have equal access.

"The ancients," wrote Henry Fielding, "may be considered as a rich Common, where every Person who hath the smallest tenement in Parnassus hath a free right to fatten his Muse". Limited-term copyright smartly enlarges that common so that all Muses may browse closer to us in time. It gives "we the people" fuller access to our inheritance.

That said, cases still arise in which the conflict between private control and public access must be revisited. How it will be settled in the current instance we cannot know, though it should be noted that the US supreme court has regularly taken the side of access. "The primary goal of copyright is not to reward authors," Justice Sandra Day O'Connor once wrote, but rather to promote the progress of knowledge. Justice William Rehnquist made a similar point in words echoing Jefferson and Madison: "We have often recognised the monopoly privileges that Congress has authorised... are limited in nature and must ultimately serve the public good..."

Congress has not typically shared that recognition, invariably extending existing monopolies when petitioned by rights holders. The law being challenged in Golan was largely the fruit of lobbying by US copyright-based industries. Software, film, television, movie and recording companies petitioned congress with the long-term goal of getting other nations (Russia and Thailand are often mentioned) to restore the copyrights of US works that had fallen into the public domain abroad. Having no control over foreign law, however, the somewhat wishful strategy was to restore the copyrights of foreign authors in this country, in hopes that other nations would reciprocate.

Stifling debate

In giving these industries what they wanted, the US congress not only unsettled established business and creative practices, it revived the problem that Locke and our founders worried about centuries ago, for it is ever the case that monopolies can as easily be used to suppress as to encourage both speech and trade.

To give just a few of many recent examples: During the 2008 Presidential campaign, Fox News demanded that John McCain remove his YouTube commercials because they infringed Fox's copyrights; the estate of poet Countee Cullen refused to let Poet Laureate Robert Pinsky use Cullen's work in a documentary after learning that the context hinted at Cullen's homosexuality; the Church of Scientology has regularly sought to silence critics with claims that they infringe on the Church's copyrights, as when they sued the Washington Post in 1995 for quoting Church documents.

It is true that in such cases, copyright's "fair use doctrine" offers a way for users to defend themselves, and fair use should certainly be more widely claimed. At the same time, few speakers have the time or money to engage in litigation. A recent fair use case brought against the estate of James Joyce took years to resolve and cost almost a quarter of a million dollars. Even when a use is patently fair, most speakers will fall silent when threatened with a lawsuit.

Unless, of course, what they use lies in the public domain. Fair use, the Supreme Court has said, is one of the "traditional First Amendment safeguards"; so it is, but the strongest safeguard of all is the bright line drawn by the limited term. That bright line, moreover, was originally drawn to harmonise with several others.

Samuel Johnson's 1755 Dictionary, the one that the Founders would have known, illustrates its definition of "limited" with the phrase "limited monarchy", and, in so doing, reminds us that limiting monopolies was a key way in which British jurists checked the powers of their king. Transported to the American context, then, the limit of copyright should be understood as one way in which the framers checked the powers of congress and squared copyright with the First Amendment's prohibition on laws "abridging the freedom of speech".

Which brings us back to that 1948 movie. If you teach the Cold War, and hope to show Iron Curtain to your students, good luck. As one unintended consequence of copyright rendition, that film has now disappeared from domestic distribution. Congress managed to do what Stalin never could. The limits the founders built into copyright were meant not only to engender a public domain but, by the same token, to curb congress' power to do favours for its friends and to soften the fact that expressive monopolies are easily abused. "Limited monarch", "limited times", "limited powers": By such phrases do we nominate the constraints that are the preconditions of liberty.

Lewis Hyde is a poet, essayist, translator and cultural critic. His latest book is Common as Air.

The views expressed in the article are the author's own and do not necessarily represent Al Jazeera's editorial policy.

{However, they probably do reflect the views of NEWSgrist}

Our Libraries, Ourselves

 

Nice article posted at INSIDE Higher Ed, via @paufder:

Fair Use and Felony

November 10, 2011 - 3:00am

By Steve Kolowich

WASHINGTON -- A bill under consideration in Congress could make it easier for federal prosecutors to bring criminal charges against academic libraries for unduly making copyrighted materials available to students, according to a letter sent to lawmakers on Tuesday by a group of influential library associations.

The bill, called the Stop Online Piracy Act (H.R. 3261), or SOPA, stipulates that “any person who willfully infringes a copyright” can be charged with a felony “if such a person knew or should have known that the work was intended for commercial dissemination.”

SOPA, a more sprawling version of the Senate’s proposed Protect-IP Act, garnered a lot of buzz when it was introduced by the House Judiciary Committee last month. Now, in advance of a Nov. 16 Judiciary Committee hearing, the Library Copyright Alliance -- a group made up of the American Library Association, the Association of Research Libraries, and the Association of College and Research Libraries -- has stamped its seal on a letter to members of the committee expressing “serious concerns” about its implications for university libraries.

The bill would “increase the exposure of libraries to prosecution,” the associations say.

The letter mentions several civil lawsuits currently being litigated against universities over alleged copyright violations by their libraries: Cambridge University Press v. Patton, in which several publishers are seeking a crackdown on e-reserve practices at Georgia State University; Authors Guild v. HathiTrust, in which authors are trying to stop the University of Michigan library and its partners from building a digital repository that includes copyrighted books; and Association of Information Media and Equipment v. Regents of the University of California, in which an educational film trade group is attempting to block the University of California at Los Angeles from streaming copyrighted videos on password-protected course websites.

“In this environment, the criminal prosecution of a library for copyright infringement is no longer beyond the realm of possibility,” the library advocates say in the letter. And they say the wording of the SOPA bill might give a U.S. attorney’s office the necessary ammunition to bring such charges.

Specifically, the libraries are troubled by what they see as an attempt to conflate liberal readings of the U.S. Copyright Law -- in particular, the “fair use” exemptions accorded to educational institutions — with “willful infringement,” which can carry criminal penalties.

Copyright law distinguished three levels of copyright infringement: innocent, ordinary, and willful infringement, explains Brandon Butler, director of public policy initiatives for the Association of Research Libraries and author of the letter. “Ordinary” infringement is when a violator “believed his action was non-infringing but this belief was unreasonable” in the eyes of a court, Butler says. “Willful” infringement is undertaken in bad faith, and violators can be forced to pay up to $150,000 in damages (although, notably, a court can waive those fines in the case of nonprofits such as libraries and universities).

Under the current language of the SOPA bill, Butler and his fellow advocates say, “The willful infringement level would swallow the ordinary infringement level, thereby significantly broadening the range of activities subject to criminal sanctions.”

The letter also points to a line in the SOPA bill that makes “public performances” of copyrighted works a potentially criminal offense even when the violator is not making money from “performing” the work.

Under the current copyright regime, ”A willful infringer of the public performance right can only be subject to misdemeanor (as opposed to felony) sanctions, and only if the infringement was for purposes of commercial advantage or private financial gain,” writes Butler. Under a SOPA regime, institutions that commit “public performances” that a court deems unlawful might be charged with a felony, he says.

This last concern is given immediacy by a recent ruling in the case of Association of Information Media and Equipment v. the Regents of the University of California. A federal judge ruled that streaming Shakespeare films on a secure course website constituted a public performance of those copyrighted works -- the same as screening them during class. Because the specific contract between the publisher of the Shakespeare films and UCLA permitted public performances, the judge threw out the case. (The ruling did not address whether public performances were covered by the fair use exemptions in general.) The association has since refiled the lawsuit.

Most of the supporting rhetoric behind the SOPA bill has focused on foreign websites that support unauthorized downloading of copyrighted media files, while its critics, who include the Electronic Frontier Foundation and the Open Internet Coalition, have tended to focus on big-picture themes such as the hazards of attempting to “regulate the Internet.” The objections of the Library Copyright Alliance might seem peripheral by comparison. At the same time, their requests are accordingly narrow and prescriptive:

The relevant passages “should be amended to eliminate any possible negative implication that broadens the scope of willfulness” and “so that they do not apply to streaming and other public performances for non-commercial purposes,” the letter concludes.

A spokeswoman for Rep. Lamar Smith, a Texas Republican who is the lead sponsor of the bill, did not return requests for comment regarding the concerns of the library associations.

For the latest technology news and opinion from Inside Higher Ed, follow @IHEtech on Twitter.

The Richard Prince Appeal: A Compendium

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:

via The New York Times, Arts Beat: September 15, 2011, 2:05 pm

Court Allows Richard Prince to Appeal Copyright Decision

By RANDY KENNEDY

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.”

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via greg.org (November 3, 2011):

Richard Prince And Friends

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
Size Matters?
"THE WITNESS: This could be a cool book."
"The Movie is called 'Eden Rock'"

art | projects | writing | posted by greg at November 3, 2011 12:34 PM

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via WarholFoundation.org:

NOVEMBER 3, 2011 Warhol Foundation Urges Federal Appeals Court to Provide Broader Protection for Appropriation Art

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.

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Richard Prince, Cheese and Crackers, 2008

via Artnet Magazine (Nov 4, 2011):

Prince v. Cariou

RICHARD PRINCE APPEAL FILED IN COPYRIGHT CASE

by Rachel Corbett

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.