Richard Prince Finally Sued (Again) For Copyright Infringement Over His 'Instagram' Art

from the and-it-involves-more-rastas dept

Remember Richard Prince? He's the well-known "appropriation artist" who was involved a few years ago in a key fair use case concerning his artwork. That case involved him taking photographs taken by another photographer, Patrick Cariou, of a bunch of Jamaican Rastafarians, and adding some minor modifications, blowing the images up and selling them as "art." Whether or not you appreciate Prince's art, the lawsuit raised some serious questions about whether or not it's appropriate for judges to determine what is art and what is not. A district court determined that the works were infringing, but, thankfully, the appeals court overturned most of that ruling, declaring that the majority of Prince's artowrk was fair use. Unfortunately, before the case could go any further, the case settled, so there was some murkiness over the precedent.

The next we heard of Richard Prince -- who, it should be admitted, sounds like a real jerk -- he had set up an exhibit where he had printed out people's Instagram photos along with some fake "comment" text added by Prince himself, and was charging obscene amounts of money for them (~$100,000). As we noted, it was a jerk move to do, but it didn't actually take anything away from the original works, and a number of people whose photos were used (even as they were upset about it) responded in a non-legal fashion -- by using Prince's exhibit to promote themselves. And in the case of the well-known Suicide Girls site (many of Prince's Instagram appropriations had been from Suicide Girls), they offered their own prints with their own comments... for $90.

But, of course, eventually a lawsuit had to come, and now it's here. And, would you believe it -- it (once again) involves photographs of Rastafarians. You can read the complaint here. It's been filed by photographer Donald Graham that apparently someone else (not a party to the lawsuit) had posted an unauthorized copy to Instagram (under the username "rastajay92"), when Prince then did his screenshot -> add nonsensical text -> presto it's fine art trick thing, leading to this: Graham is not happy to have found his work... er... InstaGrahamed this way. He and his lawyers sent a cease and desist and demanded the print be destroyed and any money made on it be handed over to Graham. It appears that was mostly ignored, and then to add insult to injury someone (either Prince, or more likely, the Gagosian Gallery where the works were displayed and sold) put up a billboard in Manhattan for the exhibit which included the image: There's also this weird apparent exchange on Twitter between Graham's wife and Richard Prince:

On October 25, 2014, Mr. Prince responded to a post by Mr. Graham’s wife on the social media website Twitter (“Twitter”), in which she stated that Mr. Prince “appropriated” Mr. Graham’s photograph into the Exhibition, with a reply post from his Twitter account: “You can have your photo back. I don’t want it. You can have all the credit in the world.”

Prince, of course, has made it clear in the past many times that he doesn't care in the slightest about copyright issues. He's not interested in copyright or fair use or any of the academic aspects of this debate. He just wants to make his stuff. And he has no problem being surly and obnoxious about it as well.

Once again, as we've noted in the past, even if you don't appreciate Prince's "art," it's fairly obvious that some people do, because people do keep buying up his works, even at those crazy prices. And thus, whether or not you or I or a judge feels it's art, it's clearly art to some people. And that's where it gets troubling that a court now gets to weigh in and determine whether or not this kind of art can be allowed or if it needs to be banned and destroyed. Prince is hardly a shining prince for fair use, but these lawsuits can have a huge impact on how fair use works.

As for Graham, I can totally understand why he feels upset, insulted or even ripped off. But as we saw when this exhibit first came out, it seems like there were a number of much better (and less expensive) ways of dealing with this than filing a copyright lawsuit. Graham could have easily used the situation to get extra attention for his own work. Instead, he's choosing to rip apart someone else's work.

Filed Under: appropriation art, art, copyright, culture, donald graham, fair use, rastafarians, richard prince

Suicide Girls Reappropriate Art That Appropriation Artist Richard Prince Appropriated -- At A 99.9% Discount

from the that's-how-it's-done dept

Yesterday, we wrote about appropriation artist Richard Prince and his slightly bizarre exhibit of other people's Instagram photos, with just the addition of a nonsensical Richard Prince comment -- and then selling them for $90,000 a pop. As we noted, Prince comes off like a complete jackass in almost every way here, but he doesn't care. In fact, his Twitter feed is like an art exhibit of not giving a single fuck -- retweeting or mocking many of the angry tweets coming his way, and joking about the $90,000 fees for the photos (saying that he thought it was twice that price).

In that post, we noted that one of those whose photos was used tried to "reappropriate" things by releasing a press release claiming that his artwork was being displayed in an exhibit "organized by" Prince. Some folks noticed that a bunch of the images Prince used were actually from the well-known Suicide Girls instagram feed. And now it appears that the Suicide Girls have hit back with their own bit of reappropriation as well -- selling versions of basically the same prints as Prince's for... $90, rather than $90,000. And, yes, the Suicide Girls reappropriation includes Richard Prince's nonsensical comments... but they also added one of their own: And, obviously, they don't have permission from Prince, but as they note:

Do we have Mr. Prince’s permission to sell these prints? We have the same permission from him that he had from us. ;)

Also, any profits are being donated to EFF, so that obviously rocks as well.

Again, there are interesting questions about fair use and transformative work here -- even if it's pretty widely agreed that Prince is being a total jackass about the whole thing. But, what's much more interesting than the copyright question is how people are responding to this. There's a social cost involved here. Prince doesn't care, because that social cost has no impact on his ability to sell ridiculous $90,000 prints to people who care more about "names" than art. But others are building off of the controversy and doing unique things to have an impact without having to resort to the "obvious path" of copyright law. This is a point that often gets lost in these discussions. Even if a copyright claim is a possible path, that doesn't mean it's the best path. It appears that many have recognized that there are better ways to deal with this than using the sledge hammer approach that copyright law provides.

Filed Under: appropriation art, copyright, fair use, instagram, richard prince, suicide girls
Companies: instagram

Richard Prince Continues To Push The Boundaries Of Copyright Law In Selling Other People's Instagram Selfies

from the is-it-art? dept

You may recall over the past few years, our coverage of a key "fair use" lawsuit involving "appropriation artist" Richard Prince. That case involved Prince taking photos of various Rastafarians from a book by Patrick Cariou, and then adding a bit of stuff to the photos, declaring it art and profiting mightily. We were troubled by an initial ruling against Prince, which involved judges determining whether or not his work counted as "art." Thankfully an appeals court went the other way and the case then settled before any further review.

Prince is now making more news with his new gallery exhibit that appears to involve him screenshotting various selfies posted to Instagram, adding a "comment" to them, blowing them up and printing them out to put on a gallery wall. Then, you can buy them for around $100,000 a piece. And, no, Prince did not communicate with or get permission from anyone whose photos he is using. Here's just one example (as highlighted in the linked Fortune piece). An Instagram user named Doe Deere discovered that this selfie then appeared in Prince's latest showing:

A photo posted by Doe Deere (@doedeere) on Nov 1, 2014 at 10:06am PDT

And here's her post about the fact that her own picture had been displayed and then sold for ~$90,000.

Figured I might as well post this since everyone is texting me. Yes, my portrait is currently displayed at the Frieze Gallery in NYC. Yes, it's just a screenshot (not a painting) of my original post. No, I did not give my permission and yes, the controversial artist Richard Prince put it up anyway. It's already sold ($90K I've been told) during the VIP preview. No, I'm not gonna go after him. And nope, I have no idea who ended up with it! 😳 #lifeisstrange #modernart #wannabuyaninstagrampicture

A photo posted by Doe Deere (@doedeere) on May 17, 2015 at 9:05am PDT

As you can see, Doe Deere says she's not going to sue. And at least one other Instagram user has said that he too won't sue -- even though he's clearly pissed off about it. Sean Fader, a struggling artist, noted that suing would actually play into Prince's own hands, making Prince "look like he’s thinking about rights in digital spaces, and that the work is questioning authorship in contemporary society." Instead, Fader has decided that if an appropriation artist is going to appropriate his work, he might as well appropriate it right back:

“I’m really interested in the idea of re-appropriating my own work and taking the work out of the frame that he’s put it in, re-engineering it to continue the conversation that I was interested in from the beginning, and shifting the work back to that space,” Fader said. “I struggled for a while to decide how I felt about it. When I went and saw it I was fuming. I would be psyched to be appropriated into work that was good. I just think the work is flat. It flattened the work in a way that I was not thrilled about its denial. By not communicating with me, by not talking to me, he denied every level of shared authorship, or engagement, all of those things that were so important to me in the work. That’s what irked me about the whole thing. So Prince made his move, now I’ll make mine.”

How'd he do that? By sending out a press release, telling people to visit his work in a new exhibit "organized" by Richard Prince.

So far it doesn't appear that anyone has sued him -- but some of the commentary on this is completely inane. The Washington Post had a totally clueless story suggesting that your Instagram photos aren't really yours.

Frankly, this does seem like a jackass move by Prince, but (no matter what Fader feels above) it does raise questions about "rights in digital spaces" and -- more particularly -- art. Part of the reason why Prince won his case over the Rastafarian photos was because his artwork was deemed transformative -- not in terms of how the artwork looked necessarily, but the context of the artwork itself. And that's definitely true here. Whether or not you think it's any good -- or whether or not you think that Prince is a jackass for the way he went about putting this work together -- it doesn't change the fact that he's the one attempting to take these Instagram photos and turn them into "high art."

In some ways, it reminds me of the differences between invention and innovation. Invention is coming up with something new. Innovation is making something that the world wants. Yes, the Instagram users who created these photos made the works -- but Prince made them such that people were willing to pay $90,000 for them. That is "transformative" in more ways than one -- even if you are reasonably perplexed by what kind of sucker might pay that money. The fact is that he convinced people to do so, and that's a form of innovation.

Would that be enough to survive an actual lawsuit should one arise? Perhaps not. Fair use cases are almost always a total crapshoot, and it's not hard to see how a jury and judges would stack up the four factors in a variety of ways that could lead to either result. But, it still seems worth considering what kind of loss has actually happened here? Yes, it feels slimy by Prince. And the fact that he's making $90k a pop for selling these images (without sharing those proceeds with the original photo creator certainly contributes to that really slimy feeling). But it's not as if any of these images on their own would be seen as worth that. It is -- for better or worse -- the fact that Prince chose to highlight them that suddenly made them worth so much money. That may not be "fair" -- but it might be fair use.

Filed Under: appropriation art, copyright, fair use, instagram, richard prince, selfies

Key Fair Use Case Settles, Rather Than Continue (And, No, It's Not The Beastie Boys)

from the settlement-day dept

Yesterday was apparently "settlement day" for high profile copyright cases. Lots of attention was paid to Google and Viacom finally settling the ridiculous seven year battle in which Viacom tried to fight the future and reinterpret the DMCA... all for naught. And then, you may have seen that the Beastie Boys and Goldieblox settled their high profile lawsuit as well. However, that was almost a foregone conclusion. There was no way that lawsuit was going to move forward.

However, a much more important copyright case, also settled. The legal fight concerning fair use between photographer Patrick Cariou and famed artist Richard Prince also happened to settle on the very same day. We'd been covering that important fair use case, which really highlighted the importance of the "transformative" step in determining fair use. Prince had taken photographs of Cariou and created "collage paintings" in which he added to the photographs. While a lower court had said this was not just infringing, but that Prince's artwork (valued at millions of dollars) needed to be destroyed, an appeals court, thankfully, mostly overturned the decision, declaring that most of the works in question were fair use, and leaving the lower court to re-examine whether a few more were or were not transformative enough to be fair use.

As with the YouTube lawsuit, the settlement means that the final precedent set by this case is not nearly as clear-cut as it could be, but (again like the YouTube case), on the whole, the state of the case when it ended is generally useful. With YouTube, while the appeals ruling could have been more definitive concerning the DMCA's safe harbors, it was generally supportive of them and completely rejected Viacom's wacky theories. Similarly, in this case, while the appeals court didn't wholly support fair use for all of Prince's works, at the very least it did find most of them to be fair use, and (unlike the district court) recognized that immediately jumping to a claim of "infringement" and ordering the destruction of artwork that the art world clearly valued quite a lot was a dangerous step to take. While some might argue that having an eventual Supreme Court ruling in either case helps establish a clearer set of rules, given the unpredictable nature of the Supreme Court on copyright issues, the settlement in both of these cases, when the results were generally positive, may be the best thing for the state of copyright law currently.

Filed Under: appropriation art, beastie boys, copyright, fair use, patrick cariou, richard prince, settlements
Companies: goldieblox

Appeals Court Overturns Richard Prince Ruling In Victory For Fair Use & Appropriation Art

from the that's-more-like-it dept

It was over a year ago when we last wrote about Richard Prince, the famous appropriation artist who was sued by photographer Patrick Cariou, whose photos Prince had used in various collage paintings. In a very troubling ruling, the judge in that case rejected Prince's fair use defense in a summary judgement, and ordered all 30 relevant works be turned over to Cariou to be sold or destroyed as he saw fit. This was a shock to the art world, where appropriation art has been a popular and highly-respected art form for years, with Prince as one of its best-known practitioners.

Today, we get some good news: the appeals court has overturned the decision (pdf and embedded below) and found 25 of Prince's paintings to be fair use, while sending the other five back to the lower court so the fair use defense can be properly considered rather than summarily dismissed. There are a few oddities in the details, but overall this is a fantastic ruling that includes some excellent language about fair use.

One of the most disturbing parts about the earlier ruling was that the lower court completely dropped the ball on its interpretation of fair use, incorrectly stating that in order to qualify for fair use, a new work must be commenting on or criticizing the original work. That's plainly wrong, and the appeals judge set the matter straight:

The district court imposed a requirement that, to qualify for a fair use defense, a secondary use must “comment on, relate to the historical context of, or critically refer back to the original works.” Cariou, 784 F. Supp. 2d at 348. Certainly, many types of fair use, such as satire and parody, invariably comment on an original work and/or on popular culture. For example, the rap group 2 Live Crew’s parody of Roy Orbison’s “Oh, Pretty Woman” “was clearly intended to ridicule the white-bread original.” Campbell, 510 U.S. at 582 (quotation marks omitted). Much of Andy Warhol’s work, including work incorporating appropriated images of Campbell’s soup cans or of Marilyn Monroe, comments on consumer culture and explores the relationship between celebrity culture and advertising. As even Cariou concedes, however, the district court’s legal premise was not correct. The law imposes no requirement that a work comment on the original or its author in order to be considered transformative, and a secondary work may constitute a fair use even if it serves some purpose other than those (criticism, comment, news reporting, teaching, scholarship, and research) identified in the preamble to the statute. Id. at 577; Harper & Row, 471 U.S. at 561. Instead, as the Supreme Court as well as decisions from our court have emphasized, to qualify as a fair use, a new work generally must alter the original with “new expression, meaning, or message.”

Of course, even this judge seems to have a few facts muddled, considering "parody and satire" cannot be casually linked together like that in the context of U.S. copyright law — one is a well-established and codified form of fair use, the other enjoys no such protection. In fact, the initial court's talk of comment and criticism seems to have stemmed from confusion between the standards for fair use in general, and the standards for parody specifically (where commenting on the original is indeed a requirement).

There's more good stuff about fair use, including lots of citations, to be found in the ruling, which should be read by anyone who still claims that copyright is a natural right or that stronger copyright always means more creativity:

The purpose of the copyright law is “[t]o promote the Progress of Science and useful Arts” U.S. Const., Art. I, § 8, cl. 8. As Judge Pierre Leval of this court has explained, “[t]he copyright is not an inevitable, divine, or natural right that confers on authors the absolute ownership of their creations. It is designed rather to stimulate activity and progress in the arts for the intellectual enrichment of the public.” Pierre N. Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105, 1107 (1990) (hereinafter “Leval”). Fair use is “necessary to fulfill [that] very purpose.” Campbell, 510 U.S. at 575. Because “‘excessively broad protection would stifle, rather than advance, the law’s objective,’”

...

The “ultimate test of fair use ... is whether the copyright law’s goal of ‘promoting the Progress of Science and useful Arts’ ... would be better served by allowing the use than by preventing it.” Castle Rock, 150 F.3d at 141

Since the court goes through a full fair use analysis, there's lots of good stuff on issues other than the transformative one too. The ruling clarifies that neither the "commercial use" aspect nor the "amount of work copied" aspect of fair use is determinative, and explains why Prince's work qualifies for fair use even though it is commercial and often uses Cariou's photos in their entirety.

But there's still a somewhat problematic side to this ruling, and that's the aforementioned distinction of five works from the rest. It brings us back to a problem we talked about a lot last year when this case was in the courts: judges playing art critic. The fact that fair use is so vague means that, every time it's tested, it starts to turn into an argument about whether a piece of art is "good" or "worthwhile" — a subjective standard if there ever was one. Among the five that have been sent back to the lower court is the most famous of them all (Cariou original on the left, Prince work on the right):

The ruling draws a distinction between that and one of the other works that it declared to be fair use (again Cariou left, Prince right):

In that comparison, it's not hard to see how the latter example changes the original "more" than the former. But that's where the obviousness ends. The true challenge is drawing that line, which the appeals court was not prepared to do:

As indicated above, there are five artworks that, upon our review, present closer questions. Specifically, Graduation, Meditation, Canal Zone (2008), Canal Zone (2007), and Charlie Company do not sufficiently differ from the photographs of Cariou’s that they incorporate for us confidently to make a determination about their transformative nature as a matter of law. Although the minimal alterations that Prince made in those instances moved the work in a different direction from Cariou’s classical portraiture and landscape photos, we can not say with certainty at this point whether those artworks present a “new expression, meaning, or message.”

The problem is that I don't think anyone can say with "certainty" what the meaning of a piece of art is, and that includes the artist themselves. In some cases, it seems like the most sensible approach would be to rely on experts — in this case the many galleries around the world that have showcased Prince's art, and the many critics who have praised it (or, for that matter, condemned it — a new meaning doesn't have to be something people like). Of course, there are potential problems there, too: many an important art movement was rejected by the established community at its outset.

Overall, the most important part of this ruling is that it overturns the ridiculous assertion that comment and criticism is the only form of fair use — but other than that, it fails to provide much clarity. I'm not certain any court could. There's no way to guess what the lower court will decide once it goes through the fair use test with the remaining five works, to the point that the question is almost entirely a matter of opinion, and it's not hard to envision a ruling in either direction. Whenever you have that much uncertainty on a point of law, something needs to be fixed.

Filed Under: appropriation art, fair use, patrick cariou, richard prince

When Judges Are Determining Whether Or Not Art Should Exist... We Have A Problem

from the judges-as-art-critics dept

We've written about the somewhat horrifying ruling in the Richard Prince appropriation art case before. If you haven't been following the details, Prince is an appropriation artist, who takes works he finds elsewhere, and modifies and transforms them into different pieces of artwork. The law around this kind of artwork is tragically murky -- with some cases ruling that appropriation art is fair use, and some ruling otherwise. The Prince case got extra attention for a few reasons. One is that Prince is considered one of the biggest name artists around, and his works can sell for millions of dollars. The second is that this case also implicated the gallery that showed Prince's work, raising some serious questions about secondary liability for galleries, and whether or not galleries themselves must become copyright experts. Finally, the ruling suggested that Prince's artwork -- valued at a few million dollars -- might need to be destroyed..

This is the truly horrifying part. Whether or not you appreciate the work, clearly some people do like it. Personally, it's not my taste, but I'll be damned if my own personal taste (or any other third party's personal taste) should ever be the determining factor in whether or not any particular piece of art should exist.

And, yet, that's what we have here. While the case is on appeal, the NY Times recently ran a pretty good overview of the case, and highlighted why the art world is paying so much attention to it. Especially for a younger generation, building new works of art on works that came before seems totally natural. It's a good thing:

“For the generation that I spend my days with, there’s not even any ideological baggage that comes along with appropriation anymore,” said Stephen Frailey, an artist whose work has used appropriation and who runs the undergraduate photography program at the School of Visual Arts in Manhattan. “They feel that once an image goes into a shared digital space, it’s just there for them to change, to elaborate on, to add to, to improve, to do whatever they want with it. They don’t see this as a subversive act. They see the Internet as a collaborative community and everything on it as raw material.”

At the same time the tools for mining and remolding those mountains of raw material are proliferating. In November a developer and a designer introduced an iPad art app called Mixel, aimed at amateurs but certain to end up in artists’ studios. It allows users to grab images from the Web or elsewhere, collage them almost effortlessly and then pass them around, social media style, for appreciation or re-mixing.

One of its creators, Khoi Vinh, a former design director of NYTimes.com, has been surprisingly frank when asked about the tsunami of copyright problems such an idea stirs up. “This is really a case of, you have to do it, try it and ask for forgiveness later,” he said to an interviewer. “Otherwise it would never get out there.”

What you begin to realize is that, like the wider copyright battle, to some extent this is a "generational" thing. And I don't mean that totally as an "age" thing. There are plenty of "older" people who understand these issues (or who create works via appropriation), just as there are some younger copyright maximalists. But, in general, this does seem like a generational thing, where you have generations of people who simply find the process of building on the works of art completely natural, and those who don't.

But the part that really troubles me about these discussions is a rather simple point about fair use: if the new work does not, in any way, harm the original work, it's seems positively insane to me to think that it shouldn't be seen as fair use. This point is made by Prince's lawyers:

Joshua Schiller, Mr. Prince’s appeals lawyer from the firm Boies, Schiller & Flexner, said the boundary is whether a new work of art results from the borrowing. And he argued that it was clear that Mr. Prince had made parts of Mr. Cariou’s pictures into distinctive Richard Prince works, not just copy them to pass them off as his own and deprive Mr. Cariou of his livelihood. Whether the work was successful and whether Mr. Prince’s intentions were interesting or even explainable can be left to debate. But the primary intention was to create a work of art, Mr. Schiller said, and that is the kind of creativity the law seeks to encourage.

“This is not piracy,” he said. “These are not handbags.”

I'm still waiting for someone (anyone!) to give me a compelling explanation for why it's a problem in any way, shape or form, if the new work does nothing to take away from the old work. In fact, in cases like this, it's easy to argue that the new work, since it came from a much more well known and successful artist, likely drew much more attention to the original work, thereby raising that artist's profile and stature.

Filed Under: appropriation art, art, copyright, culture, fair use, intent, patrick cariou, richard prince

Do We Really Want Judges Determining What Art 'Says'?

from the freedom-of-expression dept

There was a very big legal ruling last week having to do with copyright in the art world. It involves the artwork of Richard Prince, an appropriation artist, who took some photographs from Patrick Cariou's book Yes, Rasta, of various Rastafarians, and then used them in various paintings. There were a bunch of photographs used -- this is the comparison shot that has been used in a lot of the press coverage: That's Cariou's photo on the left, and Prince's painting on the right. I'll admit that, personally, I'm not that impressed. But I'm really not sure what my art criticism should have to do with anything. Yet, many others seem to want to jump in and have their own criticisms of the art determine whether or not this sort of thing should be allowed. And that's troubling from the perspective of letting artists create what moves them, rather than setting up laws over what is and is not allowed to be art.

In this case, despite plenty of other lawsuits that found appropriation art to be legal, the judge ruled that this is infringing, leading many to predict a pretty massive shakeup in the modern art world, where this kind of appropriation art has become pretty common. What strikes me as most troubling is that the judge's decision appears to rest mainly on what the artist's stated intent was in creating these paintings, and deciding that since he was neither commenting on the original works nor the subjects of the images, it's no longer a protected fair use. That seems questionable. Why should the intent of the artist matter one way or the other? As law professor Peter Friedman notes in the link above:

What was Jackson Pollock's purpose in painting Lavender Mist? Van Gogh�s in painting The Irises? Haven�t we accepted by now the limitations focus on artistic intention would impose on our appreciation of art?

One take away from this is that any time an artist is sued, they should just insist that the artwork they created was "commenting" on the original work, even if it wasn't. But why is that the standard? The fair use standard doesn't say anything about intent, and judging the true intent of an artist seems like a really dangerous game. Some, like Charlie Finch, are pointing out how this is a dangerous slippery slope under which judges are determining the value of artwork:

Judge Batts implied a kind of slippery slope by observing that Prince had not cut up or sectioned Cariou's pictures sufficiently, making an observer wonder whether a Mimmo Rotella standard of radical pictorial transformation would be the minimum standard for fair use.

Either way, having a judge as an interpreter of the meaning of art remains Kafkaesque: we can trot out the entire oeuvre of Andy Warhol, Robert Rauschenberg and a thousand other artists as violators of Judge Batts' standard.

The reality is that the judge here seems to have gone beyond what fair use has said in the past, in creating this new standard. As Greg Allen warns this is a massive limiting of fair use:

If it stands, it would have major, sweeping, and stifling effects.

Not only would the current operating assumptions of fair use and transformative use be ratcheted way back, but the contemporary art world would be turned upside down. It would restrict both how artists appropriate, or even refer to, copyrighted work. And it would turn galleries into copyright police, with an affirmative responsibility to clear images, sources, and references for the work they show and sell.

That last point is also notable. It wasn't just Prince who was sued, but also the art gallery that displayed his works, which was found guilty of direct infringement for displaying and selling the works, and then also found guilty of vicarious and contributory infringement because it "had the right and ability (and perhaps even responsibility) to ensure that Prince obtained licenses." That seems like a pretty big stretch as well.

In the end, I'm sure people will stick up for this ruling because they don't think what Richard Prince did was very good or particularly artistic. Yet, clearly, many in the art world disagree with you, as his paintings sell for extraordinarily high prices. And, in the end, shouldn't that be the determining factor? If people are willing to consider this artwork and pay for it as artwork, then what's the problem? On top of that, it seems like Cariou should have been able to capitalize on this attention himself, increasing the value of his own work.

And... speaking of Cariou's work... one question I have in all of this is how much is Cariou paying the Rastafarians that he photographed? After all, isn't he making use of their works as well? Either way, Prince has made it clear that he's appealing and has hired some powerhouse lawyers to help him out. Of course, he had to appeal quickly, because under the original ruling, all of his paintings at issue in this lawsuit were to be destroyed.

As a final word, however, I'm going to quote a chunk of copyright lawyer Ray Dowd's analysis, in which he worries about what this means for art:

Others are delighted at Prince's discomfiture.   I am troubled.   Fine art, truly fine art in an art gallery, is a place where a copyrighted work becomes a fetish object, a tribute, a decontextualized thing revealing a new meaning.   The urinal of Marcel Duchamp.   The Brillo Box of Andy Warhol.   Both utilitarian objects made by others and fetishized by the artists.

And look at L.H.O.O.Q. - nothing original in the execution, but the Mona Lisa was in the public domain at the time.   Prince is blatantly stealing.   Plagiarists take the words of others and try to make you believe that they have crafted them.   But Prince's cutouts from advertising, porn and outlaw biker magazines never misled the consumer.  

But somewhere, something bothers me about shutting a highly respected fine artist down completely and burning his works when the first sale doctrine would permit him to buy a copy, modify it and resell it.   When the First Amendment lets even repulsive speech be heard and the contemporary art world says it is art, I have a problem with the government burning it.

To me, an original work of fine art properly labeled as such by a new artist is almost pure speech - or in some way pure idea - even if it includes major appropriations.  Things change when the artwork is widely reproduced.  When the consumers are paying tens of thousands for Prince to take something no one is interested in, put his spin on it, and add value.   Prince's "appropriation" added ten million dollars worth of value to a pile of books.   Everyone knew he didn't create the original.

This is not a question of consumers being defrauded, these are wealthy ultrasophisticates on the cutting edge who are the purchasers - surrounded by the top art advisers and critics -if these people feel that Prince's value added is that great, what is the harm in letting them indulge, as long as Prince legally purchased the original books?   In fact, Prince's prices will probably soar - scarcity and scandal drive art prices up.

You should click through to read the entire Dowd piece, which includes multiple images to back up what he has to say. In the end, his point is really the key one: no one is being harmed here. No one is being fooled. Art is a form of speech, and even if you personally don't think much of it, or are upset about how the artist goes about it, is that really something for a court to decide?

In the context of music, we were just discussing how an appropriation artist like "Kutiman" was creating new artwork by pulling from YouTube. And, even some of the staunchest copyright defenders in our comments said what he was doing was fine, trying to distinguish his "creative" appropriation with "consumptive" appropriation by others. Well, here's another case of "creative" appropriation. So why isn't it allowed?

Filed Under: appropriation art, art, copyright, culture, fair use, intent, patrick cariou, richard prince