Representatives of the art world and the legal field mixed at the New York City Bar Association’s Midtown Manhattan premises on Tuesday afternoon to talk art and theft.
For the panel “What We Talk About When We Talk About Appropriation: Contemporary Art After Cariou v. Prince,” attorney Amy J. Goldrich led a panel of six artists, curators and lawyers in a lively discussion about copyright protection, fair use, artistic practice, and questions about value and integrity.
In March, U.S. District Judge Deborah Batts ruled in favor of French photographer Patrick Cariou, whose book of photographs of Jamaican Rastafarians, Yes, Rasta (2000), was used as raw material by artist Richard Prince in his “Canal Zone” series of paintings and collages, which showed at Gagosian in New York, in 2008. Batts’s far-reaching decision gave Cariou custody of Prince’s works, several of which were sold for over $10 million. The case is now under appeal.
Opinions broke down along predictable lines, with Claudia Ray, a partner with Kirkland & Ellis, which represented the Associated Press against Shepard Fairey over his “Hope” poster, expressing skepticism about appropriation as practiced today: “One question that seems never to be asked is, ‘Is there any compelling reason an artist could not ask permission to use an image and pay for the use of it?’ There are those who make a practice of not asking.” Artist Hank Willis Thomas, who uses found advertising images in his work, came down on the opposite side. Asked if he would allow another artist to sample his art, he expressed his reply in lofty terms: “My limiting someone else’s use of my work might inhibit the intellectual growth of humanity.”
On Ray’s side was curator Dan Cameron, who pointed out that Sturtevant, asked artists’ permission before re-making their works. “I don’t appreciate it when artists dissemble,” he said. Also skeptical was Walter Robinson, artist and editor of artnet.com: “If artists were smart, they wouldn’t copy. They take their chances. Is that a legal strategy?”
The other two panelists argued for broader fair-use protections. Anthony Falzone, director of the Fair Use Project at Stanford, invoked the First Amendment, arguing, “It protects sedition and flag-burning and protesting at a fallen hero’s funeral. Shouldn’t it protect artistic expression?” Art historian and lawyer Virginia Rutledge, who filed an amicus brief on behalf of the Warhol Foundation in Cariou v Prince, pointed out that “copyright itself has become a subject for artists. It’s a fundamental condition for making art in a way we’ve never seen before.”
One of the highlights of the proceedings was a tense exchange between Ray and Rutledge on the nature of fair use, which protects “transformative” use of copyrighted material. During the discussion, Rutledge challenged Ray, who argued that Prince had done nothing meaningful with Cariou’s images, and had offered no commentary on them. “I can only go by what Prince said in his testimony, where he said he did nothing to transform the original images,” Ray maintained. (From the court transcript: “Q. Were you trying to create anything with a new meaning or a new message? A. No.”)
Not true, Rutledge fired back: “You have your own eyes to go on, and all the commentary that artists and art historians have offered about Prince’s works.” Ray could only offer the defense, “You can’t ignore what the artist said,” as though Prince’s saying he did not transform the works means, de facto, that he de did not. Rutledge: “Sure, if you take that one line out of Prince’s testimony, you might find it convincing that fair use protections don’t apply to his work—if you don’t know the law!”
Falzone argued that the law should take into account how appropriation affects creators: “It’s hard to believe Cariou would stop doing his work because Prince can use Cariou’s photographs to create paintings. Shepard Fairey’s political speech is highly valuable, and his use of an AP photograph has no effect on news and reporting photography.”
Cameron was quick to dispute Falzone’s position. “It’s not Prince’s first time stealing. He steals in order to be sued and create a legal brouhaha. The point of the work was to behave as a criminal and create a bad-boy ethos, and with it, he makes millions.” Falzone countered, “But is not the very creation of a bad-boy, rule-breaking image a form of expression?” Not a convincing argument when you’re relying on Gagosian to pay for your lawyers, Cameron countered. Robinson wondered whether further creation and expression, rather than litigation, would be the best response: “Prince is, in a way, answering Cariou. Shouldn’t Cariou have to answer back?”
Asked about the prospect of being sued over his project Unbranded (2008), which uses images of blacks culled from advertisements, Thomas saw potential value in litigation, though he has not been sued himself: “Part of that project is to study the way blackness gets appropriated by corporate interests. I wish a corporation would sue me. They might incriminate themselves.”
When Goldrich posed a question about the extent of copyright protection for advertisements, since it quickly becomes part of the public consciousness, Ray was firm: “A work is a work is a work. You can’t say that because it’s commercial it’s not creative.” Falzone quickly countered: “But you don’t need copyright law to incentivize advertisements.”
A member of the audience asked whether the concept of a “moral right,” which allows for attribution and the protection of the integrity of a quoted work but is distinct from the economic protections covered by copyright law, might be useful. Falzone: “Terrible idea. There’s no principle to it. Nothing to tether or limit it.” When another questioner wondered whether an ASCAP-style licensing arrangement would be of use, Rutledge replied, “We already have Artists Rights Society and VAGA, and those systems are not frictionless.”
Near the end of the allotted time, attorney Judith B. Bass opined from the floor: “I think we can all agree that the courts are not the best place to solve these problems.” Shortly after, the panelists retired across the street, to the Algonquin Hotel, where the Round Table met in Dorothy Parker’s day, to hash out the finer points of intellectual property law over drinks.