The case between the artist Patrick Cariou and Richard Prince continues to wend its way through the courts, holding both promise and risk for artists and museums and others who support the arts. In a nutshell, and as is well-known, Cariou published a series of photographs he took of Rastafarians in a book titled Yes, Rasta (Powerhouse, 2000). Prince came across the book in a bookstore; utilized various of the images, or parts of the images, in collaged and otherwise newly-created paintings for a series of 30 works titled Canal Zone. Prince didn’t ask for Cariou’s permission to use the photographic images, which are copyrighted in Cariou’s favor, nor did he pay him a licensing fee. Cariou sued, claiming copyright infringement. Prince defended on the grounds that his appropriation of the images was “fair use” under the eponymous doctrine, which is derived from the First Amendment principles that protect creativity through the limited monopoly of the copyright laws while at the same time promoting new or different creative expression in artworks that use pre-existing imagery, even if the latter are otherwise copyright-protected.
The trial court initially sided with Cariou, finding that none of the 30 paintings in the Canal Zone series was “transformative” of Cariou’s imagery to enough of an extent to protect Prince from copyright claims. The trial judge ordered the paintings—some of which had already been sold and each of which had a market value at Larry Gagosian’s gallery of well over $1 million—to be seized and potentially destroyed. Prince of course appealed and the paintings have been kept in storage in the meantime. The appeal did not result in a complete victory for Prince. The appellate court did, correctly, reverse the trial court’s decision and held that the judge had looked at the works with too narrow a view of what constitutes “transformation.” And while the court was able to conclude by examining images of the work that 25 of the 30 paintings embodied legitimately new or different forms of expression, meaning, or message, it was unable to determine what to do with the remaining five paintings. So it has sent those paintings back to the original trial judge, asking her to figure it out.
Why does this matter to anyone but Prince and Cariou? Simply this: in the wake of the appellate decision there still remains uncertainty about the extent to which one artist’s use of another artist’s imagery in creating a follow-on work is protected from a copyright lawsuit with the potential for economic loss or even artistic destruction. And there is reciprocal uncertainty on the part of the first artist as to the extent of his rights to be properly compensated and protected against an inappropriate use of his copyrighted imagery.
Moreover, it remains unclear—when there is a suit—what sort of evidence a court must consider in refereeing the dispute or, indeed, whether the court is free to make the decision itself based on a purely visual or “side-by-side” comparison of the works. As noted, the latter is what the trial judge did the first time, but she did so on an overly narrow view of what constitutes “fair use.” And yet two of the three judges that heard the appeal felt they could reach a decision as to a number of paintings on a purely visual comparison by applying a broader legal standard, but then couldn’t make up their minds about others. So is the problem that judges are trying to decide what is or isn’t “art?” Could be.
One obvious risk is that if decisions about artworks are left to the subjective views of individual judges, then the First Amendment protections of the law are at risk of being lost due to bias or a simple lack of information. And that means that there remains uncertainty in the law as it may affect other artists who use appropriative techniques in their work. Indeed, the recent example of the David Smith estate and its licensing agent VAGA initially blocking a show of works by the young artist Lauren Clay on the alleged grounds that her work violated the Smith Estate’s copyrights, shows that the risk is arguably greatest for younger, emerging artists testing the boundaries of free expression, where they are less able, for financial or other reasons, to defend themselves. Ms. Clay and the Smith estate seem to have been able to work a number of the copyright issues out, but the show that her works were to have appeared in has so far come and gone without her.
Should any of these issues have arisen to start with? Justice Antonin Scalia, a judge with whom I rarely agree, does in this context have a good sense of why the courts are often ill-equipped to sort these matters out. Concurring in a decision that overturned the obscenity conviction of an alleged pornographer he said:
I must note, however, that in my view it is quite impossible to come to an objective assessment of (at least) literary or artistic value, there being many accomplished people who have found literature in Dada, and art in the replication of a soup can. Since ratiocination has little to do with esthetics, the fabled “reasonable man” is of little help in the inquiry, and would have to be replaced with, perhaps, the “man of tolerably good taste”—a description that betrays the lack of an ascertainable standard. If evenhanded and accurate decision making is not always impossible under such a regime, it is at least impossible in the cases that matter. I think we would be better advised to adopt as a legal maxim what has long been the wisdom of mankind: De gustibus non est disputandum. Just as there is no use arguing about taste, there is no use litigating about it. For the law courts to decide “What is Beauty” is a novelty even by today's standards.
Pope v. Illinois, 481 U.S. 497, 504-05 (1987)
Thus it is fundamentally out of concern for the potential chilling effect that the Cariou/Prince case may have on artistic expression that the Warhol and Rauschenberg Foundations concluded that it would be useful to the trial court, and thus to the parties themselves, to present the views of the broader art community: (1) on the contours of the “fair use” doctrine, including its art historical origins in the pioneering works of Duchamp, Warhol, Rauschenberg, Levine, and even Prince himself; and (2) on the kinds of evidence the trial court should consider in determining whether any otherwise copyrighted works are entitled to the protections of that doctrine, including expert testimony and other evidence drawn from the broader art community that would inform the court’s decision as to the existence of new meaning or message that might be perceived in Prince’s work.
Among the reasons why this could be of assistance to the court is that the parties to the case have already presented differing views on these questions. Cariou is arguing that the trial judge can basically look at the works again and judge for herself that there isn’t that much difference between Prince’s paintings and Cariou’s photographs. But that’s what the appellate court tried to do and couldn’t. So Cariou is clearly wrong about that.
On the other hand, Prince is arguing that the judge needs to at least consider expert testimony explaining not only visual differences between the works but differences of purpose and context. To that end, Prince has submitted proposed statements by Nancy Spector and Brian Wallis, two highly respected scholars who will be well-known to readers of the Rail and argues that their opinions would be relevant to the court in understanding the art works in question. And Prince is clearly right about that.
The broader questions thus go to the nature of art itself and how it is perceived in the world. A follow-on work’s uniqueness of meaning, and thus its transformative purpose and character, are not always easily determined upon initial inspection and comparison with the work allegedly infringed. To be sure, there are cases where the transformative nature of a follow-on work is so clear that no deeper inquiry may be required beyond what appears upon initial inspection of the works. But in many cases a court must take on the more difficult task of deciding whether a follow-on work carries a meaning or message—whether facially apparent or not—that is sufficiently distinct from the first work to be entitled to the First Amendment safeguard embodied by the fair use doctrine.
Simply put, within the context of art history, the purely visual has never been the measure of how meaning is created. Adequate assessment of an artwork’s meaning is therefore not limited to what can be seen and felt by the five senses. Rather, one must attempt to form a cognitive understanding as to what the artwork is, including by reference to art history, art theory, and an identification of the relevant audience for the work. To impose a narrower limit in the context of contemporary art would be to deny understandings that have been appreciated by generations of artists, art historians, curators, collectors, and others.
Nevertheless, Cariou seems to be trying to persuade the judge to impose just such a limit. Prince correctly urges the opposite. The Warhol and Rauschenberg Foundations support Prince’s proposal that the court reopen the record to admit further evidence on the question, but are also focused on the broader implications of the case. A copy of the Foundations’ brief may be downloaded here. So feel free to read it and … you be the judge.
Michael Straus is the Chairman of the Andy Warhol Foundation for the Visual Arts, Inc., as well as a Writer at Large for the Brooklyn Rail. The views expressed in this article are his personal views and may not necessarily be attributed to the Foundation itself.