Richard Prince, ‘Cariou v Prince,’ 2010-2011, mixed media work with performance, photo and text, dimensions variable

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Why start an article about Richard Prince with an image by Larry Rivers?

“WHO called you?” Larry Rivers, then heading into the last of his 79 years of life, cantankerously boomed at me on the other end of the phone.  “The legal department at Vogue.”  “The legal department…Ha!  That’s fantastic.  Don’t worry, I’ll call Dick, we’ll take care of it.”  According to Rivers, he then called Richard Avedon…and the two men laughed and laughed and laughed.  I have no idea exactly what happened after that, as the issue was never again (until this very posting) mentioned.

This happened way back in 2001, when was employed by Marlborough gallery and had the doubly-dubious distinction of working with Rivers to organize a promotional event at Lord & Taylor centered around his recent Fashion body of work.  The telephone helmed at the intersection of these circumstances rang one day.  It was the legal department at Vogue:  their organization had just seen an advertisement of a Larry Rivers painting that we were selling which was ‘blatantly and unlawfully’ ripping off a photo taken by Richard Avedon and commissioned by Vogue.  Would I please tell the artist & gallery to cease and desist, or face further legal action?  To confess, I found this a little bit intimidating (and also exciting).  After all, what did I know?  Well, in fact, I knew what ‘appropriation’ art meant in my circle, and knew that Rivers had been deploying this trope for four decades and without legal consequences, and knew that it was hardly likely that Avedon was unfamiliar with Rivers’ work, and also knew that the owner of Conde Nast (and thus Vogue) was also a some-time client of the gallery.  But as far as the law was concerned, all of this knowing could be tantamount to knowing nothing.  So I called Rivers.

I find it fitting to relay this anecdote in light of the tremendous ruling in favor of Patrick Cariou in the Cariou v. Prince case of early this week.

Upfront and first of all, I wish to make it EMPHATICALLY CLEAR that I agree with the general ‘art world’ view that it is not up to the court system to provide definitions or interpretations for art or art making. If you are not familiar with the particulars of the case, I recommend reading Paddy Johnson’s breakdown here, or read the judgment in full (as I have done) by going to artnet. I must say that before I read as many primary source documents as I could find, I was more inclined to tow the party line; now, however, I take issue.

It appears to me that the defense strategy in this case was not as much to distinguish Richard Prince’s use of the appropriated material as different from the source material, but more to assert that the source material was not ‘art’ and therefore not protected by copyright.

In breaking from popular sentiment, I confess that I do NOT believe that this is about redefining appropriation.  I do NOT believe that artists will adjust their practices in accordance with the law any more than they have (or have not) done so already; nor do I share the fear that legislation is as vital a conduit for cultural change. Finally, I do not believe that the courts have any intention of enforcing this judgment as a blanket ruling.

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One thing I do believe, for starters, is that the case of Cariou v. Prince is more of an upstairs-downstairs story of class warfare between one Goliath artist and another slightly-more David one – and in my view, the court acted rightly in protecting the rights of Cariou as an art marker.

Here’s the language from page 10 of the original summary that is the best place for me to start:

 Defendants assert that Cariou’s Photos aremere compilations of fact concerning    Rastafarians and the Jamaican landscape,arranged with minimum creativity in a manner typical of the genre,  and that thePhotos are therefore not protectable as a matter of law despite Plaintiff’s extensive testimony about the creative choices he made in taking, processing, and selecting them. [emphasis mine]

Or, in lay-speak:  Richard Prince, Gagosian Inc, and Larry Gagosian do not consider Cariou’s photos art, despite the fact that Cariou believes that they are.

And then, later on page 29, there is this gem:

“Defendants’ protestations [were] that Cariou ‘has not marketed his Photos more aggressively.'”

Translation: you and your dealer weren’t good enough at selling art to capitalize on the sales potential of your work.

So the basic defense is that Prince’s art is art just because it is; Cariou’s art is not art because it is not; and moreover the opportunity to sell it should only be afforded to those who will do so most “aggressively”?

Ouch.  To see if this is true, the court then looked to Prince et al to provide evidence of these claims. They explore basic concepts of how the law deals with copyright usage:  for example, has the way Prince has used the images altered so substantially that a new meaning is arrived at (no); was the original work made in a way that would not be considered creative (no).  They cite Blanch v. Koons, the sole winner among several infringement cases brought against Prince’s peer, wherein it was found that by removing the original work from its context (fashion material) and introducing it to the art audience of galleries and museums, was among the elements that imparted Koons’ work new meaning and therefore an distinguishably different work of art.

Of course, Prince et al could not recycle the victorious defense of Blanch v. Koons.  Here is why:  Prince and Cariou are more alike then they are different.  Both are making artwork for display and dissemination within the contemporary gallery system.  In fact, their specific ways of going about it are not all that different:  like Prince – who often makes and publishes books as their own art works or in tandem with a larger body of work – Cariou set off on an art making project, 6 years in the making.  He published and sold the book, but held off on licensing the images and sold or gave away only a small number of the reproduced prints, with the goal of ultimately saving them for a gallery show (again, as Prince has done).  The artist found a contemporary art gallery in New York interested in showing and selling his work, and they began to plan an exhibition. The planning included marketing, production and timing strategies.   The plan was foiled when someone else came along with this work, showed it publicly, and sold it.

The defense is essentially a legal rendering of the very concepts Prince has been mining in his work for 30+years: it asserts that at any time you can take any image, revoke the concept of authorship, and repurpose it for any (or no) reason whatsoever.  That’s fine.  But if the case arises when the original author begs to differ, is the correct tact to ask him to risk his own livelihood in order to jump on the high-theory bandwagon?  If the original author reclaims authorship, should not the authorship revert to him? If it were not for the [enormous] amounts of money at hand, perhaps we could all pick lint out of our bellybuttons while we contemplate this post-modern dilemma, read some Adorno, and then call it a day.  In fact, Prince is making many millions of dollars (as is Gagosian), while Cariou is not (who only stood to make $3,000 to $20,000 per print, versus the $17 Million + in cash and assets that were conferred to Prince for the sale of the work).  Prince is basically saying that images are free reign in this society, and so is the ability to make a buck (or tens of millions of bucks)…may the best man win. Prince’s position may be just as anti-artist and pro-capitalist (if not more) than the Court’s.

Perhaps practical and strategic reasoning brought them to court rather then to settlement: maybe the defendants felt that the combined resources of Prince and Gagosian would be too much for Cariou to contend with, and would force him to withdraw his complaint; maybe they were more confident in their own defense and legal team; or maybe they could not come up with terms that satisfied Cariou. It appears just as likely that they sought to make a legal case out of Prince’s overarching tenets about art, those same which are manifest in his work. Of the myriad choices available to Prince et al to deal with the complaints of Cariou, they opted for the one that best reflected Prince’s conceptualconcerns.  From the artist’s deposition to the entire defensive strategy, it seems to me like the case of Cariou v. Prince should really be titled Richard Prince, Cariou v. Prince,  2010-100, mixed media work with performance, photo and text, dimensions variable.

Let me stress the point that the two artists were making the work for the same context and towards the same end.  The biggest difference between Prince’s goals as an art maker and exhibitor versus those of Cariou were 1. conceptual ideology; and; 2. scale of economy.  Were Prince to have won, the message would have been more dangerous:  a successful artist can use a lesser-known artist’s work at will, call it appropriation (thereby christening it as art while denounce the original as not art), and win just because he says this is true.

Next, as for concerns elsewhere that this ruling will damage the idea and definition of appropriation art, I’m not buying it.  For one, the court itself claimed in the judgment that the issues of copyright and appropriation can be tricky and as such demand to be treated on a ‘case-by-case analysis’ (page 14).  Thus, this case was not about appropriation art per se, but about the work of Richard Prince in specific.  If you are an artist whose work rests so tightly on the definitions set by Prince, then you’ve got problems for a whole host of reasons.

The third thing I believe and an issue worth more full discussion is about ramifications for artists.  Most artists seldom give a rat’s ass about what the law thinks of their art or how it is made when they are making it.  Moreover, there is another, less ‘aggressively’ market-driven way for appropriation art to flourish and for art to advance.  That is via the exchange and dialogue between artists across genre, as fostered by mutual support and the advancement of technology..  The upside of this ‘culture of exchange’ is that artists don’t often initiate litigation between their sympathizers. There are many examples of this in the art world (Walker Evans/ Sherry Levine an easy one)…but here I offer one that looks back on how these issues have manifested in a another artistic practice that rests HEAVILY on appropriation:  HIP HOP.

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There are many books, articles, blogs and law journals that have dealt with the interesting history of sampling and the laws or restrictions of it.  Google that.  I offer one really great example for both its accessibility (it is not obscure) and how well it presents the issues – law, commerce, and artistic innovation – at play here:  the ‘Grey Album’ by Danger Mouse.  In 2004 dj Danger Mouse created an album that was a mash-up of Jay Z’s 2003 The Black Album  and the Beatles’ 1968 The White Album.  For the sake of ease and brevity, I’m copying from Wikipedia here:

The album, which Danger Mouse released in limited quantities to a few internet outlets, created controversy when EMI, copyright holder of The Beatles, ordered Danger Mouse and retailers carrying the  album to cease distribution. The amount of attentionThe Grey Album received caused EMI to act. Danger Mouse never asked permission to use The Beatles’ material, and intended to produce a limited production  run of 3,000 copies.  Jay-Z’s material, on the other hand, was commercially released in a cappella form.  Although the work was copyrighted, it was released for the implicit purpose of encouraging mashups and remixes.  The album quickly became popular and well-distributed over the Internet because of the surrounding publicity. It also came to the attention of the critical establishment; it received a very positive  write-up in the February 9, 2004 issue of The New Yorker and was named the best album of 2004 by Entertainment WeeklyThe Village Voice‘sannual Pazz and Jop critics poll ranked the album 10th for 2004.[2]                 

So on one side of the debate is corporate megalith is EMI, which keeps watch over unlicensed use of the works of the Beatles (much to the consternation of the artists, the Beatles, who created the work in the first place…but that is another story), from which they have themselves made hundreds of millions of dollars.  On the other side is Jay Z, an enormously popular star – the Black Album alone sold over 3 million copies, contributing to Jay-‘s estimated net worth of $450M – who not only approved of the Danger Mouse work, but moreover distributed his material in such a way so that it could be reworked by other artists, at reduced (or no) cost or licensing fee. 

It’s not just his artistic proclivities that would incline Jay Z to do so.  Sure, there are benefits as an artist:  by distributing his own material in this way, Jay Z is participating in the culture of hip hop (which is a culture of exhange, making liberal use of appropriation).  Such a gesture keeps his work fresh to djs in the basement, on the street, and in recording studios around the world – it gives him street cred and keeps him young.  It is also GREAT business:  it exposes his work to new audiences, which in turn helps sell more of his own records.  PLUS it legitimizes his market:  the more Jay Z acolytes you see around you, the more he himself is both regarded as an artistic influencer and valued in the marketplace.  It is a genius stroke of branding, for what it cost him in lost royalties it made up for in so many other ways.

On the other hand there is EMI. Yes, we get their point:  they own the Beatles, you do not, and therefore only they have a right to say how the work is applied and who makes money from it (and how much).  And it’s likely that if the case had gone to court, EMI would have won.  Despite being on the correct side of the law, does it not make EMI seem greedy, out-of-the-loop, and hostile towards artists? Does anyone doubt that no matter how many copies could have gotten sold of The Grey Album, this number would also be a mere decimal of the 19,000,000 copies of the The White Album sold in the US alone to date?

So what’s the better strategy for change:  to do as Jay Z and participate in the culture of exchange, or do as EMI and stick by the letter of the law?  This question is essential in assessing how the Cariou v. Prince ruling may impact artists.  The answer is in looking back at what’s happened in hip hop in the past 8 years.

It would be hard to argue that the Gray Album/ EMI dispute has had a negative impact on the hip hop community.  On the contrary: aren’t ‘mash-ups’ far more common now then they were before The Grey Album?  Has it not become the case that the album is now considered a major reference for the millions of kids out there whose Macs come pre-loaded with Garage Band, and are now mashing up and posting wildly?  Has it not encouraged small-time rappers and producers outside of New York – those in Atlanta, Florida, whatever – to take risks that they were afraid to take just a few years before Danger Mouse’s triumph – when major labels changed the game, leading pioneering artists like De La Soul and the Beastie Boys to lament to the world that their early work could not have gotten made in the current litigious environment?

EMI eventually vacated their the legal pursuits. This was not before a community-led initiative called Grey Tuesday,in which music sellers and distributors acknowledged the artistry of Danger Mouse’s work over the interests of EMI by making the album available for purchase or download, despite ‘cease and desist’ warnings from EMI.  One strong legal arm observed the intersection of the law and art (again pulling from Wikipedia):

   Jonathan Zittrain, professor of Internet lawat Harvard Law School, comments that “As a matter of pure legal doctrine, the Grey Tuesday protest is breaking the law, end of story. But copyright law was written with a particular form of industry in mind. The flourishing of information technology gives amateurs and homerecording artists powerful tools to build and share interesting, transformative, and socially valuable art drawn from pieces of popular cultures. There’s no place to plug such an important cultural sea change into the current legal regime.”[5]

The Grey Album episode is a useful example of how appropriation and cultural change actually move within society, in light of (or despite) the law.  It does not work as an analogy for the Cariou v Prince case.  If it did, Prince would have (as Danger Mouse does) acknowledge the artistry of the source material. Cariou would be the owner of the infringed-upon copyright, and like Jay Z perhaps he could have said “here Richard Prince, here’s my work, use it and have fun.”  With the inverted paradigm of the appropriatee being the little guy and the appropriator being the big one, it doesn’t work this way.  It is Prince who occupies the terrain of Jay Z or EMI in the art world.  As reflected by the actions of Christiane Celle, doing so would have appeared that Celle and Cariou were crassly riding the coattails of Prince’s success. That matters profoundly.  Prince’s position in disavowing authorship and the integrity with which he pursues it is interesting; but the lack of regard shown for the maker of the image, while logically consistent in his own arguments, serves to rationalize a view that is so self-contained that to believe in it is to disavow the creativity and prospects of others.

Artfagcity observes: “A real failure on the part of the court exists in understanding how Cariou can and will benefit from Prince’s work.” This is a fair point, but aside from the obvious rejoinder (think about how Prince has alreadybenefited from Cariou), there is another:  how much will the ‘failure’ of the courts benefit Prince? Whatever Cariou could hope to make from the outcome and effects of this case, it is a small price for Prince to pay for the legacy and legitimacy (and market) that this adds to his formidable career.

Going back Rivers and Avedon, somewhere in the gaffaws of their exchange lies winking complicity in light of the menacing threats from Vogue Legal.  For every artist who maintains a pointed antagonism towards the role of art and artists (like Prince) there are just as many – and more – who understand that the confluence of images in society, regardless of what the law says, can be manipulated on the front lines towards a system of potential innovations and mutual rewards.  There is an undeniable place for the resoluteness (wrong or right) of Richard Prince, and the risks therein are his to shoulder.  Just the same, there are many artists – Rivers, Avedon, Jay Z, not to mention Picasso, Warhol, Sherry Levine and countless others, that may all be in on one big secret:  that they can all beg, borrow and steal from each other and, when done correctly, they will be laughing all the way from the bank to the grave.

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