This post concerns a copyright infringement case brought in December 2008 by French photographer Patrick Cariou against ‘appropriation artist’ Richard Prince. As well as documentary work, Cariou shoots editorial work; Prince is an art world superstar whose paintings sell for millions, and many hang in the world’s great museums. (There’s a very definite David and Goliath element in the case and, laying my cards on the table, I’m for the photographer.)
To kick this post off, the diptych below is (part of) what is in dispute. On the left is the work of Cariou (who claimed that Prince infringed his copyright) and, on the right, the work of Prince (who claimed that his work is, in the terms of copyright law, “fair use”).
The background to these works is as follows: Cariou spent six years documenting Jamaican Rastafarians and, in 2000, the images were published in a book called Yes, Rasta. In 2007, while vacationing in St. Barts, Prince bought Cariou’s book and collaged a grid of pages he had torn from it on to fibreboard, painting on some of them and leaving others as they were. He called the collage Canal Zone (after his birthplace in the Panama Canal Zone) and included it in an exhibition of the same title at the Eden Rock Hotel in St. Barts. Prince then extended Canal Zone into a series of paintings that incorporated figures and landscapes taken from Cariou’s book. The series was shown in Prince’s first solo exhibition with the Gagosian Gallery in New York, who sold some of the paintings in the series for $10 million (plus).
In December 2008, after discovering that a number of his photographs had been used without his consent, Cariou filed suit for copyright infringement against Prince; Lawrence Gagosian; Gagosian Gallery Inc., and Rizzoli Publications. And, given that ‘appropriation art’ is common, the art world sees far-reaching consequences.
As Cariou resorted to the courts, it’s necessary to mention relevant law (and its practice) here. I’ll attempt to keep it simple. The Copyright Act in America, a.k.a. U.S. Code Title 17 (which is, more or less, matched worldwide), protects the creator’s work immediately, once it is in tangible form (don’t count your ideas!). Six basic rights are granted to the creator of an original work by the Copyright Act: the rights to reproduce the work; create derivative works based on the work; distribute copies; publicly display; perform and transmit the work. The creator alone decides how and whether to sell, modify, distribute, or display their work and nobody may copy or use another person’s work without permission. In copying and using his photographs without his permission, Cariou alleged that Prince had infringed on his copyright.
Generally, ‘permission’ is sought from the creator of the work and can be granted in a variety of ways but usually this falls under ‘licensing’ for which there are defined uses and fees. For example a request to use a photograph will be met with “how?”; “for how long/often?” (etc) and a fee will be set for those – defined and very specific – uses. [An aside: photographers should always be very specific on the use(s) to be made of their work – personally, I have fallen foul of a client who thought that having paid me to work for them entitled them to use the resultant photographs as often as they wished without ‘secondary use’ payments!]
The Copyright Act makes no comment on ‘artistic worth’ so, even when your great-granny masters the point-and-shoot camera you gave her and manages to fire off a shot of her feet, it is her copyright! (the same goes for the scribble you make on a sheet of paper or your warbling caught on a tape).
What the Act does allow for is “fair use” – it’s what permits me to include (publish!) the diptych above without fear of being sued by either Cariou or Prince. ‘Fair use’ allows for publication to comment or criticise or somehow transform the original work into something new.
When the case opened in the Southern District Court of New York, before US District Judge Deborah Batts, Prince did not dispute the basic facts in the case. He admitted to using 41 photos from Yes, Rasta but claimed “fair use” for transforming the original works, as opposed to creating derivative images. In depositions he stated that he wasn’t commenting on Cariou’s photographs (which he, somewhat arrogantly, dismissed as “mere compilations of facts . . . arranged with minimum creativity”) and that he simply used Cariou’s photography as “raw material” for his own works.
Judge Batts granted Cariou’s motion for summary judgement finding that Prince had indeed infringed Cariou’s copyright. (A motion for summary judgement states that no trial is necessary as, 1: there are no disputes of “material” fact, requiring a trial to resolve, and 2: in applying the law to the undisputed facts, one party is clearly entitled to judgment.) Round One to Cariou.
Round Two is an appeal against Judge Batts decision. Here an appeals court considers whether the lower court has made an error in law when reaching its decision. Importantly, this court will not ‘re-try’ the case – it can only look at the evidence which was presented before the lower court and determine whether the judge in that case erred in her application of the law (the parties are not permitted to introduce new arguments they neglected to bring up in the first place!).
What is permitted at this stage is a third-party filing of what are known as amicus briefs (‘friend of the court’ briefs to help the court in their decision process). Amicus briefs in support of Prince from the following have been filed: one from a consortium of museums (including The Metropolitan Museum of Art, The Museum of Modern Art and The Art Institute of Chicago) and one on behalf of the Andy Warhol Foundation which states that the lower court reached its decision on a misreading of copyright law (lawyer, Virginia Rutledge, said, “What the court missed unfortunately in the trial court level with Richard Prince was the work that he has made using imagery including some from Patrick Cariou’s photographs says something different, something new”).
The search engine Google, which depends on copying a lot of copyrighted material – without commenting on it at all – has filed its own amicus brief (their lawyers stating that a narrower reading of ‘fair use’ could be “dangerous” to the company’s business model).
Lastly, the American Society of Media Photographers (ASMP) have also filed an amicus brief. Lawyer, Dale Cendali, has said, “If you rip out photographs from somebody else’s book, put some paint on them and sell them for $10 million, it does seem to most people – and to the law – that there should be some consequences.” Succinctly, Cendali also said, “Artists should be allowed to use photographs . . . they should be able to do it in a way that reasonably compensates the first artist.”
The Copyright Act is about protecting the creator of an original work and ensuring that the creator of that work is compensated for each – and every – use. Despite many in the art world saying that Law has no place in Art, all that was required from Prince was a request to use the photographs; for Cariou to then license that use (at whatever fee was agreed) and none of this would have happened. Lawyers are expensive.
My own view is that, rather than ‘appropriate’ photographs, Prince should take his own if he and other ‘appropriation artists’ do not wish to be charged with theft (bluntly put, without a prior agreement and proper payment for a specific use, ‘copyright infringement’ is theft). The decision from the appeals court will be interesting.