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Prince v. Cariou Appeal: Oral Arguments Heard, Injunction Deemed Draconian

 

Via Art in America: [Emphasis is NEWSgrist's]

Injunction in Prince V. Cariou Compared to Taliban in Appeal

by Brian Boucher 05/21/12

Three judges heard oral arguments in the appeal regarding the significant copyright case Prince v. Cariou this morning. The lawyers for Prince seemed to have the judges' collective ear, which could bode well for the appropriation artist.

The case concerns the "Canal Zone" series of paintings by artist Richard Prince (2008), which incorporated photographs by Patrick Cariou from his 2000 book Yes, Rasta (Powerhouse) for a show at Gagosian Gallery. In 2009 Cariou brought a copyright infringement suit against Prince, Gagosian Gallery, Lawrence Gagosian and catalogue publisher Rizzoli. In March 2011, U.S. District judge Deborah Batts ruled against Prince and ordered the defendants to destroy remaining copies of the catalogue and unsold paintings that make use of Cariou's photographs. The case has given rise to extensive debate in the art world over copyright law and provisions for "fair use" of appropriated original material.

Prince's lawyers argued this morning that Batts's decision was based on a fundamental error in finding that an artist cannot make a transformative work using appropriated materials without "commenting" on the original. The works' value and originality, they posited, was proved by the sky-high market for the works.

Counsel for Cariou argued that there was no reason Cariou's work in particular had to be taken without permission when other, similar images existed.

The liveliest moment in this morning's proceedings came when the panel asked Daniel J. Brooks, counsel for Cariou, whether the injunction to destroy the works was in the public interest.

"It seems like something that would appeal to the Huns or the Taliban," Judge Jackson observed.

Brooks pointed out that his client's father was in the French Resistance and that he does not support destruction of any artwork, which is for him redolent of Nazi bookburning.

"The court," Josh Schiller of Boies, Schiller & Flexner, Prince's counsel, later observed, "did not invent the injunction."

The case also deals with whether Cariou's market was harmed by Prince's paintings. The judges seemed unsympathetic to Brooks's claims of a damaged market.

"Bringing up the market is a clear loser for you," Judge Parker said to Brooks, who confirmed that Cariou's prints sold for a few thousand Euro, while Prince's paintings sold for millions. "You sold to a totally different audience, you've admitted that not many of the books were sold, you sold them out of a warehouse in Dumbo, and that the book was out of print. Prince was selling to a wealthier crowd, and on this side of the river." The allusion to a more elevated marketplace in Manhattan brought laughs from the courtroom.

Another key element was testimony that art dealer Christiane Celle had balked at a previously discussed gallery exhibition of Cariou's work because of Prince's "Canal Zone" show. Schiller argued that the testimony of one dealer about a single show does not prove the foreclosure of a market, further pointing out that Cariou is still not listed as an artist on Celle's website.

"I think the key moment today was when Judge Parker said that the injunction to destroy the works was something akin to a decision by the Huns or the Taliban," Amy Adler, a professor of art law at NYU, told A.i.A. (Adler has consulted with Boies, Schiller & Flexner but was speaking on her own behalf.) "The judges could see that the injunction is draconian. And they plainly understood the importance and the artistic significance of this case."

Donn Zaretsky of the Art Law Blog pointed out the high level of interest on the part of the judges. "In the previous cases this morning, it was very businesslike, they kept everyone to their time limits. Here you could see the judges were really interested. They let everyone go over time."

Virginia Rutledge, counsel for The Andy Warhol Foundation for the Visual Arts (which filed a friend of the court brief in the case), told A.i.A., "The outcome can't be predicted based on questions raised during oral argument, but the Court has before it very compelling arguments for Prince's transformative use of Cariou's imagery and the significance of the First Amendment speech interests at stake, and was openly dismissive of allegations of market harm."

The court now deliberates and decides the case at its own schedule. Observers of the court tell A.i.A. that could take as much as six months to a year.

###

BONUS: Some Canal Zone related images you may not have seen that show their variety and scale (via Art Oberved):

Images via

Reclaiming Fair Use

 

Nice and timely, as usual, from Techdirt.

Via Techdirt: Here is Part II of our excerpt from Chapter 1 of Reframing Fair Use by Patricia Aufderheide and Peter Jaszi, which is our May selection for the Techdirt Book Club. You can read Part I here. We'll have another excerpt soon, and will be scheduling the author chat in the near future.

How Does Fair Use Fit Into The Critique Of Copyright?

from the reclaiming-fair-use dept

by Patricia Aufderheide and Peter Jaszi
Fri, May 18th 2012 6:29pm

Fair use was in eclipse for decades, with judges, lawyers, legal scholars, and creators unsure of its interpretation and convinced of its unreliability. Since the late 1990s, fair use has returned to the scene, and has become a sturdy tool for a wide range of creators and users. This transformation has been remarkable; we discuss it in detail in Chapter 5, and provide highlights here.

It happened in part because of changing scholarship. A generation of legal scholars has developed arguments for fair use as they have analyzed copyright’s effect on cultural expression. At the same time, cultural studies scholars have showcased the relevance of fair use to their work, which often involves analyzing popular culture. Teachers and scholars are beginning to take up the fair use banner, publicly using their rights and encouraging their students to do the same.

Settled, established communities of creators, administrators and users—filmmakers, teachers of English and visual art, librarians, makers of open course ware, poets, and dance archivists--have identified fair use as a necessary tool for them to use to achieve their missions. They have turned to the sturdy tool of consensus interpretation, by making codes of best practices in fair use through their professional associations.

Members of these communities have become active advocates for fair use. Their organizations and representatives have appeared before the Copyright Office to testify about the way that the DMCA, which makes illegal the breaking of encryption on DVDs, limits their ability to employ fair use in their work.

Remix artists of all kinds, working online, have come to adopt the claim of fair use as an anti-corporate banner. They trade information on fair use in conferences and conventions. When they receive takedown notices on YouTube, they issue counter-takedown notices and explain why their uses are fair. Remixers have also gone before the Copyright Office to protest the way that the DMCA impedes their creations, which are often socially critical.

New businesses have flourished employing fair use, and their trade associations have supported them. Google, the Consumer Electronics Association, and the Computer and Communications Industry Association have all advocated for fair use. Legal and professional services for communities of practice, such as lawyers and web developers, have built their fair use expertise to serve their clients better.

Think tanks and advocacy organizations have promoted fair use. The Electronic Frontier Foundation, Public Knowledge, the American Civil Liberties Union, Duke University’s Center for the Study of the Public Domain and the Stanford Fair Use Project have all taken action on fair use. Between the scholars, the creators, artists, and organizations, fair use is emerging out of a twilight existence where, for decades, it had lived. During those decades, many professionals and especially professionals in the corporate media environment—whether broadcast journalism, cable documentary, or newspapers—routinely and extensively employed fair use. But if you weren’t a professional, you might not even have heard of it. That has changed.

The goals of various actors in this resurgence of fair use differ. Some simply want to assert their rights to be able to improve their work, lower their costs and start or grow new businesses. Some want to expand the sphere of freedom of expression, so that copyrighted culture does not become off-limits for new work. Some believe that an expansion of fair use rights is imperative both to keep fair use as copyright policy is tinkered with, and to maintain the crucial principle of balance between owners’ rights and the society’s investment in new cultural creation. Some believe that fair use, exercised to the maximum, will provide concrete experience of the limitations of today’s copyright law, and point to more effective change. They all share a common understanding that individual and community action simply to assert their rights has an immediate and long-range effect on markets and policy.

[read full post]

When Photos are Information (and 'unoriginal')

via Techdirt, May 4, 2012:

Sometimes Photos Are Just Facts, And Copying Is To Be Expected

from the knowledge-spreads dept

Scientific American photography blogger Alex Wild recently wrote about his experience in discovering that one of his photos had been copied by a (now deceased) artist for an illustration that ran in the L.A. Times. In many ways Wild's attitude is commendable: he recognizes that copying is a complex issue, and ends the post with an open question about what's appropriate and how he should react. But at the same time, I think he misses the mark with some of his statements, and focuses on the wrong aspects of copying in making his case for why he feels ripped off.

Wild is an entomologist by trade, who built a photography business alongside his scientific work. The photo that was copied is a fairly straightforward snapshot of an ant: [see image above]

There can be little doubt that the illustration is directly copied from the photo. But the question is, what creative contribution did Wild make himself? As he says in the blog post:

The sketch could never have existed without my original image nor without my taxonomic expertise in identifying the species. I received no acknowledgement for my part. Somebody else got paid for my efforts, and I got… an excuse to write a blog post, I suppose. What I mean is, I feel like a chump.

But Wild's work could never have existed without the ant itself, and it seems like the primary purpose of the image is simply to document the appearance of the species. Facts aren't covered by copyright, and that's not just a legal nuance, it's a reflection of common sense: just because we observe and collect factual information about the world—even if we are the first to do so—doesn't mean we deserve any control over that information. We may expect to receive a certain amount of recognition, and we may certainly seek to capitalize on the information ourselves (since we are probably in an advantageous position to do so), but we don't get perpetual credit or payment. Knowledge cannot be owned.

What was copied from the photograph was simply the knowledge of what the ant looks like, and indeed the photo contained very little beyond that to begin with. It's a catalogue-style shot in terms of framing and composition, and the few arguably creative choices—the surface the ant is standing on, the depth of field—were not copied at all in the illustration. The only thing that was copied is the photograph's subject, which Wild didn't create. Perhaps it would have been nice if the illustration included a credit to the original photo, but the simple fact is that knowledge about our world is always going to spread beyond such concerns, and that's no reason to feel hard done by.

So I don't think this is really a question of copying art so much as repeating facts—but even from an artistic perspective, Wild goes on to show that he's still open to other thoughts on the matter:

Artists and photographers are, deep down, 90% unoriginal. We borrow each others’ ideas. We forget where they came from. We copy, transpose, modify, build on, and find inspiration from diverse other people. Much of our unoriginality is acceptably divergent, and this is a good thing. Art could not exist at all were all forms of copying verboten.

That's a very refreshing statement. He then says he thinks this instance crossed a line, but his mind isn't entirely made up. I hope that, on further consideration, he'll realize that this is something even more basic than artistic inspiration—it's a proliferation of knowledge about the natural world, and one that shouldn't make him feel like a chump at all.

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Kenny Goldsmith: The Catcher In The Rye, by Richard Prince

 

Kenny Goldsmith on my favorite topic, so here's the full article:

via HARRIET - Poetry Foundation:

Richard Prince’s Latest Act of Appropriation: The Catcher in the Rye

BY KENNETH GOLDSMITH

I had long given up Richard Prince for dead. Once a heroic and radical appropriation artist—one who granted a wellspring of permissions to the current crop of conceptual writers—over the years had morphed into a bloated, expression-based painter, churning out multimillion dollar canvases for a ravenous wealthy collectorship. His 2007 Guggenheim retrospective seemed little more than an opportunistic occasion to ratchet up the value of his already overvalued works. In fact, a year after the show, one of his Nurse paintings sold for a record $8.4 million. Clearly, Prince had moved into some other realm, one in which I, and others of my ilk, had little stake or interest in.

But then a strange thing happened. A few months ago, a friend pulled off her bookshelf a new appropriation work by Richard Prince, one so radical and so daring, that I almost couldn’t believe it was by the same artist. The premise of the book was achingly simple: a reproduction of the first edition of The Catcher In The Rye, identical in every way except the author’s name was swapped from J.D. Salinger to Richard Prince. The production value of the book was astonishingly high, a perfect facsimile of the original, right down to the thick, creamy paper stock and classic typeface. The text on the dust jacket—replete with the same iconic line drawing of the angry red horse—began, “Anyone who has read Richard Prince’s New Yorker stories, particularly A Perfect Day for Bananafish, Uncle Wiggly in Connecticut, The Laughing Man, and For Esmé–with Love and Squalor, will not be surprised by the fact that his first novel is full of children.” It was a dead-ringer through and through —not a word was changed—with the exception that the following disclaimer was added to the colophon page: “This is an artwork by Richard Prince. Any similarity to a book is coincidental and not intended by the artist.” Most shockingly, the colophon concluded with: © Richard Prince.

 

James Frey (center) and Richard Prince (dark jacket) selling books outside Central Park, 2011.

 

For a Richard Prince edition, the book was modestly priced: a few hundred bucks for a limited unsigned edition, with the signed copy selling for several thousand, matching the identical price of what the signed first edition by Salinger goes for today. Remarkably one day last fall, Prince took a bunch of copies of his pirated edition, spread them out on a blanket on sidewalk in front of Central Park, and sold them for $40 each. It’s unknown how many—if any—he sold or how a presumably befuddled public might have responded to this performance.

It’s a terribly ballsy move. Price is openly pirating what is arguably the most valuable literary property American literature, practically begging the estate of Salinger to sue him. After his recent protracted lawsuit and subsequent ruling against him for his appropriated use of images from his Canal Zone series—where he “creatively transformed” photographs of Rastafarians from an in-print book into paintings—you’d think that he’d shy away from such gestures. But no. Instead, he’s back with what appears to be his strongest and purest work of appropriation in decades.

While there are no clear answers as to why at this particular juncture Prince would choose to replicate The Catcher In the Rye, tremendous insights into Prince’s thinking and processes can be found in a recent book, Canal Zone Richard Prince YES RASTA: The Book,  published by Greg Allen, proprietor of the influential art blog greg.org. Allen’s book  collects nearly 400 pages of court documents from the Prince Canal Zone case, including depositions, affidavits, and court summaries. For anyone interested in the history of appropriation art, it is spellbinding and essential reading. In fact, this collection of documents might constitute the definitive book on appropriative practices in the arts, replete with lawyers citing in great narrative detail prior examples of theft and plunder involving everyone from Marcel Duchamp to Jeff Koons.

The meat of the book is several hundred pages of Prince’s deposition. Allen claims that it constitutes the single important in-depth interview Richard Prince has ever done—and ever will do. And he’s right: it’s a compendium of exactly what makes Richard Prince tick, peppered with beautiful and well-articulated insights. Speaking about his 1983 book,Why I Go To The Movies Alone, Prince says, “I think at the time I wrote it I was—I was very interested in anti-expressionism… And the idea of not liking your own work I thought was a kind of avant-garde, revolutionary, very poetic position to take at the time. Because most artists you meet have these large egos and love what they do. So I took the opposite point of view.” It’s a page right out of the conceptual writing playbook. Or when asked, “If you create a work of art, anyone else who wants to is free to copy it and sell it?” Prince, sounding like the most radical of free culture advocates answers, “That’s the optional or operative word you just said. Free.” Under oath, Prince says that his works are not copyrighted and suggests that, should anyone care to plagiarize his works, he would encourage it.

Tellingly, the pivotal moment in the deposition comes when he is asked, “You don’t behave more cautiously now because you have more assets than you did in the 1970′s?” Prince simply answers, “No.” From that point on, Prince is grilled on his substantial assets: his mansion on Manhattan’s Upper East Side which he purchased for $6.5 million, his many houses, the endless vacations to St. Barth’s, the lucrative deals he’s made with Louis Vuitton and Marc Jacobs, and so forth. And then there’s the prices of the Canal Zone paintings, which sold for $2 million each. Or the fact that one of his appropriated “Marlboro Men” photographs from the 1970s, made when he was penniless, was sold in 2005 auction for $1.2 million. And suddenly, your stomach begins to turn. You start to wonder if all that countercultural rhetoric is just a way of avoiding having to pay an untold sum to the photographer from which he appropriated these images. It’s complicated: While you want to support his artistic practice—there really is a sincere artist buried underneath all that cash—as the deposition winds on, he  unwittingly casts himself as a stereotype of wealth he’s become. You think, with all that cash, can’t he just settle with this poor photographer, a guy whose book sales has netted him a mere $8,000? But then you think, no: Prince’s tactics and uses of the images clearly fall under fair use. They are creatively transformative and are backed by three decades of sustained and important artistic practice. He shouldn’t have to pay a cent.

Prince’s The Catcher In The Rye is no trifling gesture. It’s a profound work of appropriation, but because Prince has money, he can afford to settle with the Salinger estate in ways that conceptual poets couldn’t possibly imagine. If I, for instance, had appropriated Salinger, due to my meager financial and marginal cultural status, I’d probably be left alone; if Richard Prince appropriated a day’s copy of The New York Times, as I did with my book Day, he’d be sued, whereas I was ignored. It’s not hard to fathom the cultural economics at play: The Rasta photographer smelled big money around Prince and he’d have been crazy not  to try to snag his share.

No artist should have to go through what Prince went through here, forced to reveal in detail his artistic process to bunch of philistines. It’s a horrible grilling, one that sucks all the mystery out of his creative practice. It’s hard to imagine Andy Warhol—with his monosyllabic responses and his legendary reluctance to speak at all—submitting to such a process. Had he done so, the mystique of Warhol would be much diminished today, which is the reason he wisely settled out of court when sued in a similar case. Clearly Warhol understood mystery’s correlative value to legacy.

As a work of conceptual writing, Allen’s book is squarely in line with the repurposed court documents of Vanessa Place and even bears a distant resemblance to Reznikoff’s Testimony. Some great transcriptional moments occur in Allen’s book, like when the lawyers are quoting from Prince’s written works (where all punctuation has to be articulated, reminding us of Craig Dworkin’s Parse) such as this passage from his essay “Appropriation” (1978):

I think appropriation has to do with the inability of the author slash artist to like his or her own work, period. Especially if the work is all theirs, period. I think it’s a lot more satisfying to appropriate, comma, especially if you are attempting to produce work with a certain believability, comma, an official fiction let’s say. If you take someone else’s work and call it your own, comma, you don’t have to ask an audience, quote, to take my word for it, unquote, period. It’s not like it started with you and ended up being guessed at. The effect you want to produce is not that different from what an audience sometimes experiences when viewing a good movie. And that’s what — and then in quotes — somebody named Christian Metz called a general lowering of wakefulness.

This sort of linguistic hall of mirrors—lawyers appropriating Prince’s writings on appropriation in thick, materialized English, bound into work of conceptual literature—makes the most compelling case for Allen’s work as literature, whereby the construction and conceptualization of his document exactly reflects the complexities of its content. Hey, nobody ever said conceptualism was easy.

Posted in Group Blog, Publishing on Thursday, April 19th, 2012 byKenneth Goldsmith.

 

 

On Appropriation: Penelope Umbrico Weighs In

(Left) Photograph by Patrick Cariou from his 2000 book Yes Rasta, (right) painting from Richard Prince's 2008 "Canal Zone" series (powerHouse Books, Gagosian Gallery)

Detail from Suns (From Sunsets) from Flickr, Penelope Umbrico, 2006-ongoing (Penelope Umbrico)

 

This article is more interesting than its title suggests:

via Studio 360: 

APPROPRIATING IMAGES FOR ART: WHEN IS IT OKAY?

Interview 

Friday, April 06, 2012

 

Last year the artist Richard Prince was sued by Patrick Cariou, a photographer, for copyright infringement. Prince had used dozens of Cariou’s pictures — arty portraits of Rastafarians in Jamaica — in his paintings. This practice of appropriation, incorporating other people's work into new artworks, is well established in the art world, and Prince has based a successful career on it. But a federal judge ruled for Cariou last year, and if Prince loses his appeal, a swath of contemporary art making will become illegal.

Kurt Andersen spoke with attorney Michael Rips and artist Penelope Umbrico about the implications for the case. 

Rips represented Jeff Koons in a very similar case in the 1990s. (Koons had used a cute tourist postcard — a couple holding puppies — to create a multimillion-dollar sculpture.) These cases aren’t easy to argue, Rips tells Kurt. "At the end of the day, however much you appropriate — whatever you're commenting on — before you can have a copyright violation you have to show damages. You have to show that the person from whom you borrowed has been economically injured." Rips feels that the markets in which Cariou and Prince sell their work are quite distinct, so he isn't convinced Cariou experienced injury.

Penelope Umbrico appropriates images from the internet for much of her work. In her series called Suns (From Sunsets) from Flickr she used (without permission) bits of hundreds of amateur photographs. Umbrico contends that because her work is fragmentary and the original image so ubiquitous, it doesn't make sense "to ascribe an individual authorship in the original photograph."

And while Richard Prince's appropriation of Cariou's Rastafarians may be more obvious, she defends his use of the photos. “Prince is using that as an aesthetic device in his work. He is not interested in authoring images, he's interested in making paintings and employing images to be active inside the frame of his paintings."

If Prince loses the appeal, appropriation art like Umbrico’s will be on shakier ground legally. But she insists she won't change her method. "It'll make me more adamant about working this way."

 

Go Penelope!