Art matters

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’)