Richard Prince and Gagosian up the canal without a paddle: copyright or wrong?

31 03 2011

In a ruling that should strike fear into the collective heart of artists worldwide, Richard Prince and Gagosian Galleries have failed in their defence of the case brought against them by photographer Patrick Cariou for copyright infringement (Cariou’s photo is on the far left, and Prince’s painting is on the right).

Prince acknowledged that he used at least 41 of Cariou’s photos from his publication, Yes, Rasta, as the basis for his Canal Zone series of paintings, exhibited at Gagosian’s West 24th Street branch in 2007. Echoing the case brought against Shepard Fairey by Associated Press for his use of Manny Garcia’s photo of Obama in Fairey’s now iconic Hope poster (a case that was settled earlier this month), Cariou claimed that Prince didn’t satisfy the terms of ‘fair-use’ under copyright legislation.

In summary, four main tests are applied to determine whether or not the ‘fair-use’ defence applies (the full finding is available here). The first point for consideration is whether or not the artwork is sufficiently ‘transformative’ – in the words of the presiding judge, the derivative artwork must result in something that is ‘plainly different from the original purposes for which it was created’. The precedent to which the judge referred was established in the landmark case, Rogers v. Koons, in which Jeff Koons unsuccessfully defended a similar claim made by photographer Art Rogers.

One of the other factors that came into play in the ruling is the ‘nature of the copyrighted work’, meaning that the appropriation of design work produced for commercial purposes is more likely to be covered by the ‘fair use’ defence than ‘fine’ art. Although the defendants attempted to claim that Cariou’s work was more documentary than creative, the judge rightly ruled that fine art photography is rightly protected under the copyright legislation. Cariou could also show that his own market had been substantially damaged by Prince’s appropriation of his work – although he had booked an exhibition of prints from Yes, Rasta with Manhattan dealer, Christiane Cele, she cancelled the exhibition because, according to papers lodged in the hearing, she did “not want to be seen to be capitalizing on Prince’s success and notoriety…and did not want to exhibit works which had been ‘done already’ at another gallery”.

The outcome? The defendants have been ordered to: “deliver up for impounding, destruction, or other disposition, as Plaintiff determines, all infringing copies of the photographs, including the paintings and unsold copies of the Canal Zone exhibition book, in their possession, custody, or control and all transparencies, plates, masters, tapes, films, negatives, discs and other articles for making infringing copies.” All current and future owners of Canal Zone paintings must also be informed that the artworks infringe Cariou’s copyright, and that they cannot legally be displayed.

What does this mean for artists? For one thing, best seek copyright permission before making significant use of someone else’s work in your own. Or, only make use of material that is not subject to copyright. If you find yourself getting defensive about an artist’s right to free and unrestricted expression, just give yourself a gentle reminder that the purpose of the law is to protect all artists’ moral rights – that is, the right to be acknowledged as the maker of an artwork. It’s been this way in the music industry for ages. I’m open to any rational arguments as to why the visual art world should be exempt from these laws.

This is all part of a very interesting ongoing discussion about whether or not art, and artists in particular, are above the law. This is always the question that pops up when the “art or porn” debate rears its ugly head – the Bill Henson fracas is the latest example of this. Until very recently, artists have usually been given a leave pass when it comes to laws such as defamation, pornography, and copyright. These test cases suggest that the times might be a’changing.  That this ruling has gone through in the jurisdiction that is the strongest advocate for freedom to speech is particularly telling.

(image: ‘The Art Newspaper’)

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Back to the Future. New York sales a hint of things to come?

5 11 2010

In constrained economic times, it would be unsurprising to see art buyers swinging their attention to established artists from days of yore. Sure enough, in the latest series of fine art auctions held in New York, some surprising prices were realised for work by artists who were out of favour during the boom. Particularly notable was the sale of Lawrence Alma-Tadema’s The Finding of Moses, 1904 (pictured above). The painting was offered for sale with a pre-auction high-end estimate of US$5 million, and a flurry of bidding quickly pushed the price to $35.9 million, including buyer’s premium. The first session of Sotheby’s auction of 19th century European art realised a healthy $61.5 million and by my reckoning, based on Sotheby’s published results, they sold a healthy 75% or so of the lots on offer.

Christie’s Impressionist and Modernist auction results from 3 November are equally impressive, with a sale total of just under US$231.5 million, and a clearance rate of 80% of the lots on offer. A new record price was set for Henri Matisse for the monumental bronze Nu de dos, 4 état, acquired by über dealer Larry Gagosian on behalf of a private client (in the New York Times, Carol Vogel hints the monied collector in question may be hedge fund billionaire, Steven A. Cohen). The hunger for works by Italian sculptor, Alberto Giacometti, remains unsated, with Femme de Venise V selling for $10,274,500 to a private buyer. An important 1913 cubist painting by Juan Gris, Violon et Guitare, also set a new auction record for that artist when it sold for over $28.6 million to a private European collector. In its press release, Christie’s Americas Chair, Marc Porter, credits the success of the sale to “deep bidding from a diverse group of collectors representing North and South America, Europe and Asia.”

When Sotheby’s goes to auction on 23 November in Sydney, with an estimated sale range of A$3,879,000-5,292,000 and featured lots by artists Rupert Bunny, John Peter Russell, Arthur Streeton, Arthur Boyd and Sidney Nolan, the powers-that-be will undoubtedly have their collective fingers crossed that the trend back towards traditional and modernist masters has translated to the Antipodes. And, with 20 of the 94 lots on offer by sculptor Robert Klippel, let’s hope bronzes are all the rage here as well.