Friday, January 30, 2009

Patrick Cariou Versus Richard Prince

The issue of copyright infringement and fair use concerning visual art has been a hot topic as of late. When said issues are discussed it is common for individuals to defend the alleged infringer by mentioning names of artists who have ‘sampled’ or ‘referenced’ copyright protected works in order to support the validity of the practice as well as to solidify it as mere fair use. Richard Prince is often one of the names used to defend aspects of fair use during debates about copyright and infringement. That may no longer be the case if photographer Patrick Cariou has anything to say about it.

Patrick Cariou has filed a lawsuit against Richard Prince claiming that photographs used by Prince for a series of collages were illegally borrowed from his book Yes Rasta-- which was registered in 2001. Cariou claims that his photographs were illegally used in at least twenty collages exhibited by Gagosian Gallery in 2008. Cariou did not stop with just Richard Prince-- the suit, which was filed in a U.S. federal court in December, also targets the Gagosian Gallery, the owner of the gallery Lawrence Gagosian, and the publisher of the exhibit catalogue, Rizzoli. Cariou’s suit claims that all parties were involved in the infringement.

Cariou learned of the alleged infringement after the Richard Prince exhibit at Gagosian Gallery opened in New York in 2008. Upon viewing the images and press materials the photographer promptly sent a cease-and-desist letter to the gallery. However, the gallery did not acknowledge Cariou’s letter-- the exhibit did not close until the scheduled closing date. Since then the photographer has researched the extent of the alleged infringement. In fact, the lawsuit is using the words of Prince and Gagosian to support the infringement claim. The lawsuit cites interviews and press releases that state that Prince had scanned images from a book-- Patrick Cariou claims that the book mentioned was his book, Yes Rasta.

In the suit Cariou demands that the unsold artworks and exhibit catalogues be destroyed. He also demands that the owners of the sold paintings be informed that it is illegal to display the work-- which means that if the court sides with the photographer you will be hard pressed to find the collages exhibited in a public collection. Needless to say, this case could be groundbreaking in that it will establish some order concerning fair use-- either for or against it. If the court sides with Cariou and his demands are honored it would mean that there will be drastic changes in the art world. Gallerists, curators, and publishers may think twice before promoting an artist with a history of copyright infringement allegations. A ruling in favor of Cariou would no doubt open the door for others to file against alleged copyright infringers.

Individuals within the art law community have suggested that the outcome of this case-- if it goes to court-- will help to define what exactly fair use is. The case may set the standard for how fair use can be used in defending against allegations of copyright infringement. Currently a work of art that “transforms” a copyright protected image can be ruled permissible under “fair use”. However, that is not always the case. That is why this ruling will be groundbreaking-- the judge may help to define the point at which an artwork is "transformative" or not.

Links of Interest:

Photographer Patrick Cariou Sues Richard Prince for Copyright Infringement -- Photo District News

Color This Area of the Law Gray -- The Wall Street Journal

Lawsuit filed against Richard Prince -- The Art Newspaper

www.patrickcariou.com

www.richardprinceart.com

www.gagosian.com

Take care, Stay true,

Brian Sherwin
Senior Editor
myartspace.com
www.myartspace.com
New York Art Exchange
www.nyaxe.com
London Calling
www.myartspace.com/londoncalling

12 comments:

Anonymous said...

If he wins it will mean three strikes against transformative art. I don't think a work of art is ever 100% transformed.

Joseph Bolstad said...

Demanding that Prince destroy the remaining artworks is ridiculous and will never be enforced by law. Anybody has the right to scan books and photos they own, it's when you try to sell these things that the legality gets fuzzy. If Prince were to keep these images to himself, there would be no legal concerns. That Cariou would have the audacity to make such demands only weakens his case.
"Appropriation" is a well established idea in the art world, and if Cariou were to win this case, the ruling would be going against what many people see as engaging art. Artworks which "sample" from various, often copyrighted sources are nothing new, and far too numerous to count. You'll find this type of work in any major museum's contemporary collection, at any major art fair, at almost any art school. Clearly it is an intellectually accepted idea among many.
It might be helpful to actually look at Prince's images first, compare them to the original photographs, and then make a judgement. Prince is using snippets from Cariou's photos and juxtaposing them with photos from other sources, collaging everything onto a painted canvas. In short, he's transforming them. Just like anyone who's ever done a collage.

Balhatain said...

Technically the judge could order the works destroyed or grant ownership of the works to Cariou. That would be an extreme decision though. While it is intellectually accepted-- and yes, many art schools accept it-- that does not mean that it is always legal. We have to remember that fair use is not an end-all excuse for copyright infringement. Unfortunately, it seems many people think that it is.

It boils down to this-- what we think is right is not always right in the court of law-- and out of all of the artists who have shown disgust for my view of copyright not one has answered “yes” when asked if they would be ok with someone printing off their work in order to ‘improve’ upon it and call it their own. Would you?

Fair use is still unsettled territory-- so if the case does go to court the ruling will help put a grasp on it. I think Richard Prince is using more than just “snippets” of Cariou‘s photographs. He used entire figures from the photographs. Keep in mind that Prince did not keep the collages to himself. Since they were exhibited at the Gagosian Gallery-- and considering Prince’s status in the art world-- I’m sure they have huge price tags attached to them.

You said, “"Appropriation" is a well established idea in the art world, and if Cariou were to win this case, the ruling would be going against what many people see as engaging art.”

If Cariou were to lose just as many, if not more, would see it as further weakening of copyright. Many artists, many, many, many artists view some forms of ‘appropriation’ and ‘fair use’ as nothing more than exploitation. Why do you think over 60 art organizations stood against the 2008 orphan works legislation? I’ll tell you why-- they feel that copyright is in constant threat. If it had passed it would have been pointless to file against a copyright infringer.

Copyright does not block creativity nor does it halt cultural development as you suggest. If anything it secures advancement in art. True, it is best if an artist creates simply for the passion of creating-- but is there something wrong with an artist striving to be successful financially for what he or she does?

Copyright also safeguards lesser known artists so that maybe, just maybe, they will be acknowledged for what they have done without someone else-- a corporation or ’big time’ artist-- stealing from what they have achieved in order to claim it as their own.

You said, "Artworks which "sample" from various, often copyrighted sources are nothing new, and far too numerous to count. You'll find this type of work in any major museum's contemporary collection, at any major art fair, at almost any art school. Clearly it is an intellectually accepted idea among many."

In my view that is a problem.Perhaps the copyrighted source material should be displayed next to the art that utilized it along with the name of the person who created the source material? I've read that there is a petition going around involving that same idea concerning Shepard Fairey and Mannie Garcia. If an artist feels that an image is powerful enough to include in his or her art don't you think he or she would want to acknowledge the source?

Joseph Bolstad said...

Brian, I find it a bit odd you didn't express these opinions more in your Poster Boy interview. There, you seemed relatively supportive of what he was doing, at least compared to your views on Fairey.
You said in your last commetn "Copyright does not block creativity nor does it halt cultural development as you suggest. If anything it secures advancement in art." Poster Boy readily admits he is violation of the law. Keep in mind that all of the posters he is using are the copyrighted results of hardworking people. If you truly feel protecting copyright trumps appropriation -- not just in terms of the law, but in terms of everyone's well being -- why didn't you press him on this issue further? I still hold my ground that what Prince and other artists are doing is valuable intellectual development and not just the "ripping off" of other artists. You have to remember that any ruling against Prince could affect how artists are able to use images found in the media -- say, corporate logos -- in a big way. Copyright infringement, or appropriation, whatever you want to call it, is not just cases of big artists or corporations using the work of unknowns to make huge profits. Usually it's the opposite. Just look again at Poster Boy.
Finally, to answer your question if I would mind if someone used my art in a similar manner -- let's say they took an image of one of my works and put it in their collage -- I wouldn't care. If the way the image was used was interesting and original, I would be excited. If the work was uninteresting, I would be disappointed. But I wouldn't try to prohibit someone from doing it if their work was transformative in some way. I've appropriated what others have done in my own work countless times, so why should I tell others not do so?

Balhatain said...

Joseph, the difference between Poster Boy and Shepard Fairey is that Poster Boy does not profit off of his work nor does he make copies of his work as far as I know. They are one-off pieces that do not involve profit. Thus, they would not technically be considered copyright infringement because those two crucial aspects are not a part of his process. True, Poster Boy does not agree with copyright in general-- but that just shows that I’m open to opposing viewpoints on the issue.

I understand your views on Richard Prince, but you must understand that where profit is concerned the owners of copyright must have their rights to the work secured. As for ‘big time’ artists who have infringed-- it seems to me that most of them are quick to send a cease-and-desist letter when they discover that a lesser known artist has used their work. So part of my issue stems from the hypocrisy that I see. Now, you could suggest that I’m a hypocrite for having interviewed Poster Boy. However, if he were to profit off of works created by fellow artists I would be the first to point it out. From what I know Poster Boy is not exactly interested in profit.

Defining what is original and what is interesting is very hard to do-- if someone used your work others may see it as interesting and original regardless if you think otherwise. Does that make it right? That is why the whole ‘transformative’ aspect of fair use is dangerous. People view it as an open window to infringe on any image by any artist no matter what.

Obviously Cariou does not view Richard Prince’s use of his images as ‘interesting’ or ‘original’. There are other issues to think about. For example, if someone did use your images for their own work wouldn’t you be concerned if people assumed that you had stolen from the artist who ‘sampled’ from you? Would you be concerned if that obstacle hampered your success? I don’t think artists should be placed in a position where they will be subjected to that burden. That is why we have copyright to begin with.

Balhatain said...

As someone pointed out on another entry-- the Anti-Counterfeiting Trade Agreement will likely pass. If it is established it will place a lot of power in the hands of copyright owners. It will send a clear message to people who willfully infringe on the copyright of others.

The ACTA would really shake up the art world as well as the music industry-- in many ways it would give lesser known artists and musicians a chance to be successful by allowing them to control how their images and music are used.

What can I say... we live in interesting times. Apparently Barack Obama supports the ACTA-- which means that he may not be as anti-copyright as I had originally thought.

Anonymous said...

Transformation has to be examined on a case by case basis. One of the key points of transformation in law is that it is given more weight than commerciality in court. The verdict depends on the taste of the jury or the judge. The first major case for transformation took place with Campbell v. Acuff-Rose Music. The judge sided with 2 Live Crew because he felt that their use of “oh, Pretty Woman” by Roy Orbison would not confuse the public to be mistaken for the original song because Orbison was a famous musician. The judge also found that it would be unlikely for any artist to find creating transformative works a lucrative derivative market. I think the $700,000 that Shepard Fairey’s Hope poster has made and the millions that Richard Prince has made is a sign of the opposite. I don’t think the judge at that time would have had the same verdict if 2 Live Crew had used music by a lesser known artist.

Anonymous said...

I have been reading those comments with great interest
But beside great argumentation, common, sense should prevail
I happened to know the peoples involved in this case and the facts!!
30 PHOTOGRAPHS HAVE BEEN LIFTED not one or two!!! And that’s by itself totally
Crazy
Those Rasta pictures are the central theme of the Canal Zone show!!!
The invite for the opening was one of those photographs practically not transform at all!!!
One of the photographs is used 28 times thru the show!!!
A book for the show has been publish where it’s start with rastas and end with rastas!!
In my opinion this time around prince got carried away
I don’t know why, maybe a sense of overwhelming power
It that goes to court and prince win, copyright is dead end of the story!!!

Shelley said...

What is not being said here is that Cariou's photographs were respectful depictions of followers of a religion--however out of the mainstream it may seem to many.

To smear paint over these works and call them "derivative" is not merely a ballsy call on fair use. It is a slap in the face to Rastafarians. He "...loves the look and the dreads..."? Perhaps he should "love" them enough to exert the effort not to exploit them.

Whether or not this is enforceable by law, it's high time someone slapped Prince with a lawsuit. He's gotten away with becoming rich off of photographers' works for too many years in the laziest way possible.

peter said...

Yes, copyright shouldn't inhibit creativity. But, perhaps more importantly, the only purpose of copyright is to promote creativity. In other words, if the use of copyrighted work does not itself lessen the incentive to create that copyrighted work, there's no good reason to stop its use.

What is too little recognized is that at least as important as the artist's desire to control his images to enforcing copyright is the right to free expression protected by the doctrine of fair use. Intellectual property is not a piece of land you can put a fence around. In the case of copyright, its "speech," and absent copyright there would be no limit on the use of that speech by others. So, much as artists would like to believe they "control" their images, they don't.

So one important question with respect to fair use is whether Cariou's financial interests in his photographs have at all been diminished by Prince's use of them. I find it hard to believe Cariou has been hurt. If anything, Prince's prominence has made Cariou's work more visible and arbuably more valuable.

The economic impact on Cariou's work is not the sole criterion of fair use, but it's a very important one. The centrality of this economic question -- which, as I've explained above is grounded in the American emphasis on the freedom of expression -- makes U.S. copyright law very different than European copyright law. In European law, artists do have "moral" rights in their work. Those moral rights do confer a considerable amount of control over the use of their work regardless of the impact of that use on their incentive to create in the first place.

Perhaps artists like moral rights more. Some, of course, don't. Collage and any other form of appropriation art would be considerably constrained if it were limited to the use of art in the public domain or art whose use has been consented to. The fact is, though, that in the U.S. moral rights alone are not recognized except in very limited ways.

Balhatain said...

Peter said, “What is too little recognized is that at least as important as the artist's desire to control his images to enforcing copyright is the right to free expression protected by the doctrine of fair use.”

The problem today is that there are certain groups that strive to see “fair use” extended to the point that copyright would be, for the most part, void. Which would make it very hard for copyright owners to defend their hard work in court. Look at some of the statements by the Fair Use Project and Lawrence Lessig in general.

Honestly, some of the most renowned artists who work under “fair use” are also the same artists who try to prevent others from doing the same with their widely known works. Thus, you have one side saying “don’t use my works” while the other side says “I will use your work. Don’t use mine”.

Concerning creativity-- I don’t think we should confuse creativity with the ability or desire to profit off of the works of others by taking a base image and turning it into a ‘new‘ image for posters, prints, and merchandise design.

The issue of copyright infringement does not really come up until someone involves a price tag or distributes mass copies of the image. After all, I don’t see the movie industry or comic book industry going after people who create fan art-- unless they try to profit from the fan art. Thus, you could say that copyright does not block creativity-- it simply helps to make sure that people do not profit off of the hard work of others.

Peter said, “I find it hard to believe Cariou has been hurt. If anything, Prince's prominence has made Cariou's work more visible and arbuably more valuable.”

This is always the battle cry of people who support extended interpretations of “fair use”. I get so tired of this ‘it is OK because this specific artist has made your work more famous’ attitude. It fosters the idea that relatively unknown artists and photographers should be grateful when a widely known artists uses their work without credit or compensation. To that I say, if Prince and others are so good at what they do perhaps they should take their own damn photographs rather than relying on others. We could go back and forth on this.

Peter said, “Perhaps artists like moral rights more. Some, of course, don't. Collage and any other form of appropriation art would be considerably constrained if it were limited to the use of art in the public domain or art whose use has been consented to.”

Perhaps we should have moral rights. “limited”…. “limited”… a creative artist can work around obstacles. Artists working in other mediums face challenges with their work and discover creative solutions as part of the process. So my friend, I have no sympathy for collage/appropriation artists who are not able to figure the creative puzzle out for themselves. Keep in mind that many appropriation artists work within the law and support copyright.

As for those who don't care about copyright-- if one image is off limits perhaps they should be able to explore their process further in order to find-- or photograph on their own-- an image that can be used. That is an issue of process and the challenge of creating art in general. Using a widely known image owned by Marlboro is one thing-- using photographs from a relatively unknown photographer is another.


The fact remains that with the technology of today an artist can spend months or years on an oil painting only to have another artist use an image of it without credit or compensation. It is morally and ethically wrong to do that-- especially if the image of the painting is slapped on to merchandise for profit without the painter being aware.

Again, out of all of the world renowned appropriation artists that I know of none of them are OK with people appropriating their images. So it seems that they want the best of both worlds. They want to take any image they find while at the same time protecting their own work-- which they have the wealth and connections to do.

Emerging artists are the victims of extreme interpretations of “fair use” and attacks on copyright. The way I view copyright is that it is an incentive for creators to continue creating/exploring their work knowing that they can show their work to the world while at the same time having some say as far as the market for their work is concerned.

Honestly, how many artists would share their work to be viewed online if copyright did not exist? How many would continue to show images of their hard work if companies ranging from Obey Giant Art Inc. to Wal-Mart were able to slap it onto products without compensation or credit?

Cori said...

Peter said, "So one important question with respect to fair use is whether Cariou's financial interests in his photographs have at all been diminished by Prince's use of them. I find it hard to believe Cariou has been hurt. If anything, Prince's prominence has made Cariou's work more visible and arbuably more valuable." This is true to a point; remember, Prince did not credit Cariou. If he had not brought the lawsuit against Prince, just how valuable would the exposure be for Cariou? I believe his financial interests were indeed diminished. Instead of buying the original book, people would be more inclined to buy the collages and copies thereof. That's money in Prince's pocket, not Cariou's, and he's laughing all the way to the bank. Not to mention, REAL artists cringe at the idea of having their work "re-photographed" (or in this case, just plain scanned) by Prince. What you call Prince's prominence, the rest of us call infamy, and we'd rather not have it associated with our work.