Friday, March 25, 2011

Fair Use Doctrine Dead? A Fair Use Fridays Moment of Silence for Richard Prince

We gaze in awe at the work of Richard Prince.  This photograph of a Marlboro Man advertisement taken by another photographer broke world auction records for a photograph.  Story here.   You can see that Richard Prince claims a copyright in the photograph that he "appropriated" from Jim Krantz.

My post earlier this week here on Patrick Cariou winning his lawsuit against Richard Prince got the most hits of any post I have ever made on this blog, and in a very short period of time.

The entire contemporary art community will be BLOWN AWAY by Judge Batts' decision denying Prince's use the protection of the fair use doctrine.   This challenges an entire category of art known as appropriation art.

L.H.O.O.Q. by Marcel Duchamp

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.

From a semiotic perspective, isn't Prince simply holding up a mirror to people who may not want to look at themselves or their art as art in the hands of another?   And if your message is mirror-like, is it less valid?   And if you don't have the verbal skills to articulate what you are doing, is that any less a mirror?

Richard Pettibone's Andy Warhol's Black Bean Soup (1968) (1987)

Damien Hirst Hymn

Vik Muniz, Double Mona Lisa, After Warhol (Peanut Butter & Jelly)

Papeschi's NaziSexyMouse

Or if Prince adds a subtle layer of meaning by decontextualizing the original, so what?  Who is hurt?  When Jacob the Jeweler wants to put extra diamonds on your Rolex, is society really hurt by this?

Brillo shouldn't take the boxes back from Warhol, the Keith Haring subway sketches that were illegal now rightly sell in the galleries, Duchamp probably stole the urinal.    Prince's "thefts" are not so far off those marks.

Here are some of the originals compared with infringements:

Patrick Cariou's reaction?   "Destroying art if you don't like it, that's something you have to think extremely deeply about."  Patrick Cariou to ArtInfo/HuffPost, full interview here.
 Purchase Copyright Litigation Handbook 2010 by Raymond J. Dowd from West here  


Anonymous said...

I think the problem here, Ray, is that you aren't an artist, nor have you had Prince appropriate anything from you. I'm not going to say that you shouldn't play devil's advocate--that's healthy free expression, but as somebody who Prince has stolen from, I can attest that the value added by Prince is primarily value extracted through social connections and trickery, not artistic ability. There is nothing as disheartening as spending time creating something you believe to be true, beautiful, and life-affirming than to have somebody else rip that out of your hands, call it their own, pervert it slightly, and walk away with a wad of cash...meanwhile dismissing your ideas as unoriginal and inept. I know that it has stifled my own creative output...such actions, I think, kill free expression, they don't embody the notion.

The people buying Prince's work, indeed, are interested in the idea that he's stealing and getting away with it--hence the hedge-fund managers and the rest. The reality, is, however, the cowboys are the product of photographers loosing their rights by doing works for hire and then big tobacco being complicit with Prince (I don't know the details, I just know Prince settled his issues with them). Spiritual America, similarly, was a private agreement settled long before court. Prince has always been worried that some of the bikers who took the girlfriend shots would emerge from the woodwork--not sure that will ever happen. And the more recent nurse works haven't been a major issue because most of the artists who produced the original paintings are either oblivious to their use, surrendered their copyright through working for hire, or are dead. Cariou's work has been one of the first real forays by Prince into the realm of fair use, and as can be seen, he doesn't really understand it.

You point to Duchamp's notorious image--but Da Vinci was long-long dead when that image was produced (and artist like Muniz are usually careful about using images in the public domain). Similarly, Warhol settled out of court with many of the people he aprropriated from. Rauschenberg as well. ...And Warhol (and Prince) were also both savvy enough to use publicity stills to peddle their trade.

One of the fundamental misunderstandings of fair use is the question of usurping a market (the fourth prong). At the end of the day, unless a work IS transformative, any copy that is made usurps the original artists' market since they could otherwise license the use of their images in the derivative works. Transformativeness is simply there as an exception to allow critics and educators to comment (and they need to ACTUALLY comment) without having to license the work. It facilitates free expression. Maybe there's room in transformativeness to also allow for significant transformations of the work to constitute fair use, but in such cases, the judges start becoming the arbiters of what constitutes significantly transformative work, and at the end of the day I agree that judges shouldn't be the critics of artistic merit (as Holmes famously advised).

With that said, simply holding a mirror up to something is not commentary, unless every ten-year-old boy who's played "copycat" (saying everything his slightly older sibling or parent says in mocking derision) is actually producing commentary (sorry, I don't think that's very interesting or worthwhile commentary--and at best, it's been done).

I highly doubt Cariou will destroy the Prince pieces. Maybe he will. The decision is simply a reflection of the reality that Prince and his cronies have tried, for the last thirty years to argue that he's playing with authorship and originality. There's simply no basis for those assertions, and I think the judge decided to place Prince's work in the proper historical context. He could have settled out of court and avoided all of this, but hubris prevailed.

Ray Dowd said...

Dear Anonymous - I have represented artists and photographers and fought for them many many times, but always involving truly commercial uses. I know and respect many photographers who disagree with me, but the more I think about it, the more I believe that fine art is a different place close to pure speech and should not be treated as commerce. I think the LHOOQ example is important: you as a living artist say essentially that someone should not be permitted to mock you until 75 years after you are dead. This is too close to censorship for my liking. Both Cariou and Prince will go out and make much more money over this scandal. If Prince had used the images to sell perfume, then I am with you.

I think Cariou shares my discomfort and this is a tremendous tribute to him as a man and artist of principle. Having won, he now doubts the wisdom of victory. Very much Battle of Algiers, very French, and very wise. Learned Hand said that the Spirit of Liberty is the spirit that is not too sure that it is right.


Anonymous said...

I think that a large portion of the artistic community is happy with this decision, but likewise, I think they are equally concerned about the potential destruction of the work (and I share that discomfort).

With that said, however, I'm not quite sure that I think art is pure speech. The main message of Warhol, Prince and countless others is art as commodity. Pop Life, a fairly recent survey of Pop Art even used the infamous Warhol quote as its organizing principle: "Making money is art and working is art and good business is the best art."

So I'm not sure that you're on the same page as Prince on this (and maybe here that's important).

And at the end of the day, art at this point is primarily a decorative endeavor (Damien Hirst has famously conceded this)...yes, it can have a message, but it also doesn't need to. Art embraces a wide variety of different forms of expression. I'm a bit uncomfortable with the idea that documentary photography should automatically be conceded less respect than appropriation art.

In the end...the question may not be able to be decided as a purely black and white matter--which is probably why the fair use test is so complicated. Yes, Duchamp's piece is incredible. Duchamp was a genius and engaged in many forms of art besides appropriation art. And the early Dadaist were highly politically motivated...many were banished from their homelands for their work.

I don't think forcing Prince to pay Cariou is anywhere near as harsh. And I think Prince avoided settling to a.) try to legitimize his bizarre claims regarding authorship and b.) force Cariou out of the game through legal expenses. Destroying the pieces might extreme but I'm OK with letting Cariou make that call (as long as it's not dictated by the state--Cariou put his heart into those pieces...Prince tore that heart out and sold it for millions).

As far as what Cariou got out of this, I beg to differ. Yes, Cariou will get a good deal of publicity out of this, NOW. But what if he had never checked up on Prince, and had never discovered what was going on? Prince never would have given him credit. His name was nowhere in the catalog. And if he had lost? Forget about it--no gallery would have touched him. Prince will never give me credit (unless I can assemble my case...but then, yes, putting together a case takes time and effort that distracts from otherwise making money and surviving). 75 years after death is excessive. I'll agree. But artist should be able to profit from their hard work in their lifetime...

Anonymous said...

I agree with anonymous here - lets call me anonymous 2- as I am in the midst of wondering what to do (again) about an artist who I have exhibited with and been in books with too- who has "by mistake"
( maybe yes or no) taken some of my images for their own use..... one of which might now be up in a major museum which makes one wonder of course if it ever was really a mistake or not. It is disheartening of course to see a more major artist suddenly do a very similar project after one ahd been in a show and book with them but then a real kick in the stomach when you find some of your images being used for their "new and exciting work!"
In the end I see this problem partly as a moral issue - something that people in the arts hate to talk about - morals.
I wonder if very possibly the art world teeters on being morally bankrupt.

In various blogs and on facebook one sees the whole practice of photography being put down and denigrated- as if when one shoots a photograph they should immediately expect that their image is fair use for all. I consider this notion insulting to the art practice and immature.
How for instance does an original negative or Poloroid fit into this, and why should it not be considered the same as a high res file that one has worked on to achieve certain nuances within the image.

I consider Cariou quite brave for pursuing this suit. I for myself have yet to decide what to do.