The Post-Impressionist painter Paul Gauguin once said, “Art is either plagiarism or revolution.” But after a landmark decision by the United States Southern District of New York last month, it seems that Richard Prince might have brought a revolution to the art of plagiarism. Judge Deborah Batts ordered Prince—one of the most successful appropriation artists of the contemporary art world—and the Gagosian Gallery, which represents him, to destroy over $10 million worth of Prince’s work as part of her ruling in favor of French photographer Patrick Cariou. Cariou called foul on Prince’s well-know appropriation technique after Prince used several of his photographs for new pieces, garnering Prince and the Gagosian millions while leaving Cariou empty-handed.
This copyright conflict stretches back to the 1990s, when Prince was gaining notoriety as the-next-big-thing among a host of other appropriation artists like Barbara Krueger and Sherry Levine. While Prince was selling prints of “appropriated” Marlboro cowboy ads for millions, Cariou spent most of the 1990s in Jamaica living with Rastafarians. Once he returned from Jamaica in 2000, Cariou published Yes Rasta, a photography book that featured portraits of young Rastafarian men. In 2008, Prince found Cariou’s images from Yes Rasta and decided to use 35 of them as “raw material” for a piece entitled Canal Zone. He later expanded Canal Zone into a series of 29 paintings, of which 28 contained Cariou’s work in some form. Although the paintings from Canal Zone rely almost entirely on Cariou’s material, Prince altered—i.e. collaged, enlarged, cropped, or painted over—most, though not all, of the images. The Gagosian Gallery in Chelsea later showed 22 of Prince’s paintings, of which eight were sold for over $10 million.
At the time, the owner of Manhattan’s Clic gallery, Christiane Celle, was planning to display Cariou’s Rastafarian photos. But once Celle became aware of Prince’s show at the Gagosian, she refused to feature Cariou’s photographs because she did not want to exhibit work that had been “done already.” After failed negotiations, Cariou sued both Prince and the Gagosian Gallery for copyright infringement and demanded that all of Prince’s paintings be destroyed if he was found guilty.
THE CLOSEST THING TO THE REAL THING
One of the most intriguing aspects of the case against Prince is that it has taken this long for a lawsuit to occur. Appropriating images for new artworks has been a staple technique of 20th-century art. The examples of appropriation in modern and contemporary art abound: Picasso appropriated everyday objects like newspaper clippings into canvas paintings, and Dadaist artist Marcel Duchamp’s “readymade” piece L.H.O.O.Q appropriated DaVinci’s Mona Lisa. Appropriation artist Barbara Krueger, Prince’s contemporary, appropriated images from advertisements and juxtaposed them with text, raising questions about feminism and consumerism. Sherry Levine, another artist from the time, even appropriated sculpture in her 1991 bronze-cast Fountain, which was modeled after Duchamp’s infamous urinal.
The term “appropriation art” and its tie to re-photographing photographs didn’t arise until the 1980s, when photographers, influenced by postmodernism, began photographing previously produced images. In doing so, these photographers attempt to challenge, or “deconstruct,” modernist artistic traditions that envision the artist as a sole genius, elevated above the rest of us. Instead, appropriation artists claim that all the visual resources of our world have already been exhausted. As art historian and critic Douglas Crimp explains, the work of these appropriation artists challenge “photography’s claims to originality, showing those claims for the fiction that they are, showing photography to be always a representation, always-already-seen.”
Still, even though they base their work on previously taken photographs, appropriation must go beyond simple re-photographing. Appropriation art questions “the truth function” of photography and draws attention to power relations and consumer tendencies that saturate the images that constantly surround us. In Prince’s most celebrated appropriation series, The Cowboys, he re-photographed Marlboro advertisements depicting cowboys. Prince eliminated the advertisement text from images and cropped them to solely feature the cowboy, “The Marlboro Man.” His final product is a “new” photograph which depicts the cowboys outside the context of the Marlboro ad. In doing this, Prince questions the reality of this hyper-macho character, and overall, the reality of advertisement images. As Prince explains, “By generating what appears to be a double, it might be possible to represent what the original photograph imagined. The result is a photograph that’s the closest thing to the real thing. […] I find the best way to make it real is to make it again.”
In the contemporary art world, appropriation artists have garnered both financial success and critical skepticism. One of Prince’s re-photographed Malboro ad pieces became the first appropriation artwork to raise over a million dollars in auction. Yet many contemporary artists question the validity of appropriation photographers like Prince, who gain millions off of work that essentially isn’t theirs. Cariou’s own opinion of Prince’s work sums up many artists’ concerns about appropriation photography: “If it’s to steal photographs or paintings to create something, you shouldn’t be an artist in the first place. To me Richard Prince is more of an art director than an artist. I think he’s a good art director, and a great thief.”
THE NATURE OF TRANSFORMATION
Clearly, appropriation and copyright lawsuits are nothing new to the art world. Fellow appropriation artist Jeff Koons also got sued for copyright case infringement in 2006 after he appropriated a magazine image of a woman wearing Gucci sandals. The image was stripped from its context and used along other images of woman’s legs in a collage entitled Niagara. Unlike Prince, however, Koons won his case. Another well-known copyright case involved street artist Shepard Fairey, who appropriated an Associated Press image of President Obama for his iconic HOPE poster campaign during the 2008 elections. Like Prince, Fairey declared “fair use” of the AP’s photo. But after admitting to destroying evidence of the act of appropriation, he reached a settlement with AP.
What distinguishes Prince’s case from these other examples is Judge Batts’s legal basis for Prince’s defeat. The first question addressed in the case was whether Cariou held proper copyright of the Rastafarian images. Although Prince’s defense claimed that Cariou’s photographs were not “creative works” eligible for copyright status, the court upheld Cariou’s sole copyright of Yes Rasta. However, even with a copyright, Prince claimed he was still entitled to fair use of Cariou’s material.
The application of fair use onto Prince’s work, and perhaps onto all of appropriation photography, became the defining question of the case. Under the legal clause, copyrighted material can be used fairly only if the purpose of the new work is in some way “transformative.” In order to be considered transformative, a new work must alter or comment on the meaning or character of the previous work. Derivative works, or works which merely adapt copyrighted material without added commentary, are not considered transformative. As Judge Batts stated in her ruling: “If an infringement of copyrightable expression could be justified as fair use solely on the basis of the infringer’s claim to a higher or different artistic use… there would be no practicable boundary to the fair use defense.” Judge Batts referenced Section 107 of the 1976 Copyright Act which defines fair use as only for “for purposes such as criticism [and] comment.” She concludes that unless the intent of a new piece is to comment on the previous work, even if the new work is intended to be creative and new, it is not transformative.
Yet Prince testified that for Canal Zone he had no particular interest in the photographs he appropriated. On the contrary, Prince testified that his work “doesn’t really have a message.” Instead, with Canal Zone, Prince intended to pay homage to artists Willem DeKooning and Paul Cezanne and allude to a post-apocalyptic script he is writing which features a reggae band. In other words, it was never related to Cariou or his work. To Prince, deciding to appropriate an image is “just a question of whether [he] like[s] the image.” When pushed to testify on the intended meaning of one of Cariou’s appropriated photos depicting a young Rastafarian, to which Prince added a cut out of a guitar, Prince responded, “[H]e’s playing the guitar now, it looks like he’s playing the guitar, it looks as if he’s always played the guitar, that’s what my message was.”
The other factors for constituting fair use also worked against Prince. One factor considers the portion of copyrighted work used, which in Prince’s case was substantial. Another factor considers the effect fair use had on the copyrighted work’s potential market. As was shown with Cariou’s cancelled exhibit at Calle’s gallery, Prince’s paintings “usurped” the market for Cariou’s images. On top of denying Prince fair use, Judge Batts also ruled that Prince and Gagosian Gallery acted in bad faith because neither sought permission from Cariou before using or displaying his images even though they knew he held copyright. Consequently, the judge complied with Cariou’s request that all of Prince’s paintings using any of Cariou’s photographs must be handed over to Cariou. It is up to Cariou to decide what to do with Prince’s work; in an interview he said he hoped to raise money from the pieces to donate back to Jamaica, although it is still illegal to sell the work. Prince has not announced whether he will appeal the judge’s decision.
THE FUTURE OF APPROPRIATION
Regardless of the effects this case will have on Prince and Cariou, its most important impact will likely be how it affects other appropriation artists—who, in light of this new legal precedent, will have to be more conscientious of their intent when they appropriate others’ images. Judge Batts’s definition of “fair use” in this case might be too restrictive and discourage future artistic work.
Still, in Prince’s specific case, perhaps this ruling was called for. Prince’s earlier appropriation work engaged with the content he was appropriating, namely images from advertisement. But with Canal Zone, it seems like Prince has become too comfortable with his appropriation technique, to the point that, as he testified, he takes images without any consideration. Ultimately, this lack of consideration only weakens Prince’s work. When looking at Cariou’s photographs and Prince’s appropriations side by side, one can’t help but wish Prince hadn’t ever reworked the beauty of Cariou’s images. His work doesn’t render the depictions of Rastas any truer than Cariou’s; instead, it simply degrades what were originally striking images.
What’s even more troubling is Prince’s sense of entitlement over Cariou’s work, which seems to stem partly from Prince’s art-world status. Since he is a well-known, wealthy artist, Prince apparently feels little responsibility for the work of an obscure photographer, or the need to ask for permission. “I was in the room when Prince and Gagosian were deposed and they have an overwhelming sense of power,” Cariou said. “They think that they’re untouchable. Prince got away with it for 20 years.” Perhaps this ruling will improve appropriation art by requiring artists, and the galleries that support them, to include a critical approach when borrowing work. Cariou himself hopes the ruling might ultimately “bring some sanity into the appropriation world.”
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