v31#1 Cases of Note — Copyright: Appropriation Art

by | Apr 12, 2019 | 0 comments

Column Editor:  Bruce Strauch  (The Citadel, Emeritus)  

PATRICK CARIOU v. RICHARD PRINCE 714 F.3d 694 (2d Cir. 2013)

Our superb new legal intellect Anthony Paganelli cites this case in his current article, so let’s go deeper.

Patrick Cariou spent six years among the Rastafarians of Jamaica and in 2000 published Yes Rasta, a book of portraits and landscape photographs.  He considered it “extreme classical photography and portraiture” and did not want it turned into pop culture.

Enter Richard Prince who did precisely that.  Prince is an “appropriation artist,” which just kind of cries out copyright piracy but isn’t necessarily.  These “artists” use existing images and objects with little to no alteration. London’s Tate Gallery defines it as “the more or less direct taking over into a work of art a real object or even an existing work of art.”

One might say it began with Marcel Duchamp’s 1915 Fountain — a men’s urinal he had signed.  Salvador Dali did a lobster telephone.  Jasper Johns and Robert Rauschenberg made use of objets trouvés which is to say rubbish found while dumpster diving.

But it became much more like copying in the 1980s particularly with Jeff Koons and his reproduction of banal objects.  Koons has paid some fairly hefty damages in three French lawsuits.  To me, the most recent, Fait d’Hiver, seems awfully transformational which is key to our Cariou case.

I can just throw that out knowing you can Google it with ease and arrive at your own conclusion.

At any rate, there are a slew of appropriators out there.  Richard Petibone makes miniatures of works from Brancusi to Warhol.  Deborah Kass is said to “walk the line between respectful homage and brazen copying.”  Shepard Fairey modifies Chinese communist propaganda.  He was famous for the Obama “Hope” poster for which Fairey was sued by the AP photog who snapped the original.

And Richard Prince is a major player in the field.  There is big money in it, and his work is in famous museums — Guggenheim, Whitney, Rotterdam’s Museum Boijmans van Beuningen, and Basel’s Museum fur Gegenwartskunst.

And like all reasonable people scuffling for a living, you’re asking yourself why don’t I have the necessary gall to do this?

Anyhoo, Prince put together a series of paintings and collages called Canal Zone and exhibited them at the Eden Rock Hotel in Saint Barthémy and the Gagosian Gallery in NYC.  He had ripped pages out of Yes Rasta, enlarged them, pinned them to a piece of plywood and altered them mainly by painting green “lozenges” over facial features.

Prince’s works are ten times larger than Cariou’s book photos and use inkjet printing and acrylic paint along with the torn out photo pieces.  In the least altered one, he painted lozenges on the eyes of a rasta and pasted a picture of a guitar in his hands.

And no, of course Prince did not ask Cariou’s permission.  And meanwhile Yes Rasta has gone out of print and Cariou only made $8,000.  Several of the Canal Zone works have sold for $2 million.  A total of eight went for $10 million.

And then there’s the glitteratti lifestyle of an appropriation artist.  The Gagosian opening dinner hosted Jay-Z and Beyoncé Knowles, Tom Brady and Gisele Bundchen, editors Graydon Carter and Anna Wintour, author Jonathan Franzen, actor Robert DeNiro.

Cariou sued for copyright infringement and won summary judgment and a permanent injunction at the district court in NY.

The Appeal

Prince asserted a fair use defense and argued that his works are transformative and therefore not a copyright violation.  See, e.g., Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 578-79 (1994).

The district court had imposed a requirement that the new work “comment on, relate to the historical contest of, or critically refer back to the original works” to qualify for fair use. Cariou v. Prince, 784 F.Supp. 2d 337, 348-49 (S.D.N.Y. 2011).  And it found this was not met.

If I painted a big ‘X’ through a picture, would that be a comment?

The Second Circuit asked if the original work is used as “raw material, transformed in the creation of new information, new aesthetics, new insights and understandings.” Campbell, 510 U.S. at 579.

Green lozenge eyes as new aesthetic.

Satire and parody comment on the original work and/or popular culture.  Andy Warhol incorporated appropriated images of Marilyn Monroe or Campbell’s soup cans for comment on consumer culture.

But there is no requirement that the second work comment on the original, only that the second employ the first for a different purpose or in a different manner.  It must alter it with “new expression, meaning, or message.” Id.

The 2d Cir. held the two works had entirely different aesthetics.  Cariou did “serene and deliberately composed portraits” while Prince’s work was “crude and jarring.”  Cariou did black-and-white photos while Prince used color and much bigger scale.

The district court got hung up on Prince’s deposition where he flatly stated he didn’t have a message and he wasn’t “trying to create anything with a new meaning or a new message.”  Cariou, 784 F. Supp. 2d at 349.

On appeal, Cariou quite reasonably argued that Prince should be taken at his word.

But Google Prince’s work, and you see he’s transformed Cariou despite his wacky explanation for his existence.

And the 2d Cir. said we should examine how Prince’s work may “reasonably be perceived.”  Campbell, 510 U.S. at 582.

Well, it’s certainly different, as people like to say when confronting distasteful art.  


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