Thursday, June 23, 2011

Copywrong-- a Few Words on Carriou v Prince

By: James Fletcher

Photographer Patrick Carriou successfully sued the "appropriation artist" Richard Prince for Prince's use of Carriou's photographs in eight works of "appropriation art" which sold for a total of over ten million dollars.(1) The result of the suit was a ruling that "[Richard Prince] shall..deliver up for impounding, destruction, or other disposition, as [Carriou] determines, all infringing copies."(2)  The second result was a stream of commentaries. The positions of these commentaries, either in favor or in opposition to the result of the case, seemed to be decided mostly based on what the author thought about Prince's art.

The infringement of copyright in the production of art mostly hinges upon whether the use was transformative-- transforming the original meaning through commentary-- or derivative-- relying on the purpose of the original without making a commentary on it. Upon first seeing Prince's work I assumed Prince was making some kind of commentary on the anonymity of the subjects of anthropological photos and the importance of context. (A good comparison between Prince's work and Carriou's original is here). I set about preparing to write a commentary along these lines.
Then I read this in the documents of the case:
"Prince testified that he has no interest in the original meanings of the photographs he uses....Prince testified that he 'doesn't really have a message' he attempts to communicate when making art. In creating the paintings Prince did not intend to comment on any aspects of the original works or on the broader culture."  (3)
Wait wait wait................REALLY!?   No, really!? THIS is what he said? 
About the meaning of the work where he pasted a guitar onto the photo of a Rasta he said: 
"He's playing the guitar now, it looks like he's playing the guitar, it looks as if he's always played the guitar, that's what my message was." (4)
An artist whose works regularly sell in the millions of dollars apparently isn't trying to say anything with his art and describes it in the way a five year old might.  But, perhaps we are judging him too quickly. After all, Prince surely could have afforded a good lawyer, the type who would have told him that the outcome of his case hinged largely upon his work's relationship to the borrowed photographs.  Considering this, as well as the fact that he could quite painlessly forgo the realization of some millions of dollars, maybe we should instead read into this a high level of artistic integrity.  Richard Prince showed his commitment to meaninglessness, and by doing so I believe he laid the groundwork for defending his work as a commentary on the original work in a more subtle way.

Richard Prince has hired the famous law firm of Boies and Shiller to represent him in the appeal. If they want to change the outcome they will need to demonstrate that his work is a commentary on the original.  What he said cannot be taken back. Instead they could explain that within statements like "he's playing the guitar now, it looks as if he's always played the guitar," is an implicit commentary on how context impacts a viewer's interpretation and how this relates to anthropological photos.  Additionally his commitment to the supposed meaninglessness of his work could be argued to be a comment on the meaninglessness of the "broader culture."  But, if the judge holds that the commentary needs to be intentional instead of implicit then, well.....(This would be interesting to see. The judge probably would require intentional commentary because otherwise it may create precedent for all kinds of defenses. But on the other hand, ideas like reception theory hold that the creator isn't the only source of meaning in an artistic work.)

As I said, it will be interesting to see how the appeal turns out. If the ruling that Prince infringed on Carriou's copyright is upheld, there are good reasons why the decision to impound or destroy Prince's work should not be overturned in favor of monetary damages. As a lover of all art, the idea of impounding or destroying an art work horrifies me; I literally jumped back in my seat when I read it. But the only alternative would be to award Carriou monetary damages for Prince's use of his images. As I've discussed earlier, there is no essential value to an art work, only the market value, and even experts on the art market of a given artist have difficulty determining what that value is. (See this post about Sotheby's and Christie's). It is not the job of a legal court, nor should it be, to determine how much the use of the borrowed image added to the value of a work.

(1)  As well as other works which hadn't yet sold. The price may only be relevant for explaining the extent of the ensuing storm of commentary.
(2)  Page 37
(3) Ibid, page 18
(4) Ibid, page 19

Other articles on the case:

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