In light of the recent auction season in New York City, it seems appropriate to consider some of the copyright issues surrounding contemporary art. In particular, the continuous rise in popularity of Appropriation Art makes the potential for contemporary artists to brush up against the law especially acute.
Appropriation Art refers to the practice in which an artist incorporates a real object or an existing work of another artist into a new work of art. This practice can trace its roots back to the Cubist Movement, exemplified by the likes of Pablo Picasso and Georges Braque, as well as the Surrealist French artist, Marcel Duchamp. More recent examples of Appropriation Art in the 20th century are the works of Andy Warhol and Damien Hirst. Obviously, any practice in which an artist takes someone else’s creative product and incorporates it into her own is bound to raise issues of copyright law, which is designed to give authors exclusive rights in their creative products for a limited time. However, the grant of a copyright is not absolute; certain uses of another author’s work are permitted, most notably under the doctrine of fair use. Yet the line between fair use and copyright infringement is very fine, especially in the context of Appropriation Art which makes the delineation of this boundary even trickier. The most recent example of this difficulty is the copyright infringement suit of Patrick Cariou against Richard Prince, which the New York district court decided this year. See Cariou v. Prince, 784 F. Supp. 2d 337 (S.D.N.Y. 2011).
Richard Prince is one of the foremost Appropriation artists on the contemporary art scene. Prince engages in various types of Appropriation Art, one of which is a practice in which an artist takes an existing photograph to create a new piece of art. A famous example of this form of art is Prince’s well-known series entitled Cowboys. In Cowboys, Prince appropriated the iconic image of the “Marlboro Man” from the cigarette company’s advertising campaign that was ubiquitous during the latter half of the 20th century. A picture from this series, Untitled (Cowboy), was the first rephotograph to fetch more than $1 million when it was auctioned off at Christie’s in 2005.
The practice of Appropriation Art seems particularly troublesome under traditional notions of copyright law. For example, back in 2008, Richard Prince said this in an interview: “I had limited technical skills regarding the camera. Actually, I had no skills. I played the camera. I used a cheap commercial lab to blow up the pictures. . . I never went into a darkroom.” What is a judge to do with a statement like this? In what sense is Prince being creative when he takes a photograph by another photographer, makes minor changes, and calls it his own? Is this practice sufficiently creative to merit its own copyright? More to the point, is this a legal question or an aesthetic one?
For better or worse, we don’t have to surmise the answer to this question. In December of 2008, Patrick Cariou brought a copyright infringement suit against Prince, the Gagosian Gallery, and Larry Gagosian for an exhibit in which Prince took 35 of Cariou’s photographs from his book, “Yes, Rasta.” See Cariou v. Prince, 784 F. Supp. 2d 337 (S.D.N.Y. 2011). Cariou had spent six years taking photographs of Rastafarians and Jamaican landscapes, which Prince then appropriated, minimally altered, and displayed as his own. Prince argued fair use as a defense. The district court went through the four factors stipulated in § 107 and concluded that Prince had infringed Cariou’s work. See id.
Key to the court’s holding was Prince’s own testimony, in which he testified rather blithely that he had “no interest in the original meaning of the photographs” and that “he did not intend to comment on any aspects of the original works.” Id. at 349. With flippant statements like these in which Prince proclaims unambiguously that he had absolutely no interest in Cariou’s work, Judge Batt was certainly justified in concluding that Prince’s artwork did not qualify as fair use. In Judge Batts’ words, “to the extent [Prince’s works] merely recast, transform, or adapt the Photos, Prince’s paintings are instead infringing derivative works.” Id.
The troubling part is where Judge Batt offers her own interpretation of Prince’s testimony, and ipso facto, his art. In one of this country’s foundational cases regarding copyright law, Justice Oliver Wendell Holmes Jr. recognized the danger in judges evaluating art. In Bleisten v. Donaldson Lithographic Co., Justice Homes said, “It would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits.” 188 U.S. 239, 251 (1903).
In Cariou v. Prince, Prince testified that appropriating other people’s art helps him “get as much fact into his work and reduce [ ] the amount of speculation.” Prince, 784 F. Supp. 2d at 349. This is the quintessential “artist” comment, the meaning of which is far from clear. Nevertheless, Judge Batt stepped in and offered her own translation: “That is, [Prince] chooses the photographs he appropriates for what he perceives to be their truth – suggesting that his purpose in using Cariou’s Rastafarian portraits was the same as Cariou’s original purpose in taking them: a desire to communicate to the viewer core truths about Rastafarians and their culture.” Id. Judge Batts’ interpretation is hardly the obvious rendering of Prince’s cryptic statement.
Similarly, in several of the photographs, Prince superimposed guitars on the images of Rastafarians that Cariou had taken. Prince testified that his message was very simple: the men had become guitar players since the original photographs were taken. Id. Nevertheless, Judge Batt ruled that there was “vanishingly little, if any, transformative element in Prince’s work.” Id. at 350. This conclusion seems more like an opinion regarding aesthetics than a judgment as a matter of law. And who is Judge Batt to determine if the superimposition of guitars was sufficiently transformative of the original work of art to qualify as fair use? Answer: the Judge. And therein lies the rub.
On the one hand, Judge Batt seems to have clearly violated Justice Holmes’ principle in offering her own interpretation of the meaning of Prince’s art. On the other hand, Appropriation artists cannot be exempt from copyright law. Nor can they be allowed to evade copyright laws by proffering vague and artistic sentiments in court that are incomprehensible to a reasonable judge or jury.
This dilemma is not entirely new. Almost twenty years ago, a similar suit was brought against the famous 20th century artist, Jeff Koons. In that case, the photographer Art Rogers brought a copyright infringement suit against Koons for his sculpture “String of Puppies” which was based on Rogers’ photograph, “Puppies.” The court rejected a finding of fair use, and articulated a principle that Judge Batt relied on in the Prince case:It is the rule in this Circuit that . . . the copied work must be, at least in part, an object of the parody, otherwise there would be no need to conjure up the original work. . . . We think this is a necessary rule, as were it otherwise there would be no real limitation on the copier’s use of another’s copyrighted work to make a statement on some aspect of society at large. 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 – without insuring public awareness of the original work – there would be no practicable boundary to the fair use defense.
This principle is troubling. Here, the Second Circuit categorically states that the copied work must be the object of parody because there is no other conceivable reason that an artist would use another artist’s work. Is that really the case? Prince seems to have thought otherwise, as do many other Appropriation artists. Have the judges in the Second Circuit substituted their own limited vision of art for that of artists? On a more theoretical level, is it even possible for a judge, let alone anyone, to divine all the possible reasons an artist may choose to make use of another artist’s work? Is it wise for judges to establish a copyright principle founded on such a limited understanding?
Going forward, courts will have to delicately balance the fair use doctrine with Justice Holmes’s warning against judges overstepping their bounds. As the Second Circuit has noted, “Copyright law thus must address the inevitable tension between the property rights it establishes in creative works . . . and the ability of authors, artists, and the rest of us to express them – or ourselves by reference to the works of others . . . . The fair-use doctrine mediates between the two sets of interests, determining where each set of interests ceases to control.”
The avant-garde art scene is constantly changing. However, the general trend over the last century has been towards work that is ever more grotesque and chaotic and often inaccessible to the untrained eye. Moreover, one of most prominent questions raised by contemporary art, popularized by none other than the 20th century icon Andy Warhol is: What is art? Judges will have no choice but to confront this question in copyright cases that concern contemporary art. And yet while that may be the inevitable result of current trends, Justice Holmes’s words of caution cannot be ignored. Nowhere is the fair use analysis more subtle or Justice Holmes’s admonition more relevant than in the context of modern Appropriation Art.