‘It was plagiarism, a plain piece of plumbing’ – Anon., ‘The Richard Mutt Case,’ 1917.
Who hasn’t copied something? Dress it up with whatever word you’d like, sampling, stealing, reproduction, or, if you want to flex your theoretical muscles, pastiche, quotation, or appropriation. I’m going with the last one. The recent case, Cariou v. Prince, has once again stirred up the sleeping debate around artistic appropriation. If we’re choosing sides, which the law dictates we do, then I’m with Prince.
Transformation is a key point legally and aesthetically. In addition to physically transforming photographs from a book into paintings, Prince’s images clearly operate in a context that is strikingly different from Cariou’s. If Prince’s cumulative actions don’t qualify as transformative than what does? I looked it up. The legal gymnastics required in order to fall under fair use are complex, if not frightfully subjective, though apparently citing enough precedent gives subjectivity legal legitimacy. According to Judge Batts, Prince’s paintings are “infringing derivative works” and not “consistently transformative” partly because they don’t comment specifically on aspects of Cariou’s original work, and therefore aren’t fair use. If Prince had merely claimed that part of his intent was to comment on Rastafarians the cases outcome may have been strikingly different. Deciding legal affairs on intent, as evidenced by an artists statement, is a slippery slope. After all, an artists intent is only one possible interpretation of an artwork, and as a result is a problematic basis on which to decide matters of fair use.
This court ruling is bad news for artists, from abstractionists to performers. If there was ever a simple matter when dealing with art then it’s here. Artists’ should be granted freedom to utilize and manipulate the materials that exist in the world. They have an obligation to appropriate responsibly like everyone else, but If they are indeed tasked with commenting on and reflecting back to us the culture we live in, than access to material, without fear, is critical. Batts’s ruling narrows the scope of fair use and should give artists’ the jitters.
Antiquated notions of the original gleam with irony in today’s digital wonderland, as traditionalists and profiteers scamper to preserve a shred of the long withering territory. Individuals bear the brunt of these last ditch efforts. Meanwhile, AT&T and ad agency BBDO filch ideas from Christo & Jeanne-Claude with all but an ex post facto disclaimer, (thereby avoiding liability) but individuals like Prince can’t reshape photographs from a book into paintings without having to pay up? To say nothing of this 2003 Honda spot, by the oft fawned over advertising darlings Wieden+Kennedy, that is a sterilized version of Fischli & Weiss’s The Way Things Go (1987). (The duo did threaten legal action.) Didn’t I mention responsibility somewhere? What this might say about what we as a culture value, and as a result deem appropriate in terms of ‘borrowing,’ is frankly a little sad.
[Insert rant about corporations and their ad lackeys here.]
Ultimately much of the outcome boiled down to Prince’s work having a negative commercial impact on Cariou’s . If you’re going to make that argument than you have to assume Prince and Cariou share the same market, which is obviously not the case. Score another for Prince, or not, if his appeal fails he may have to destroy his paintings. Nonetheless, regressive pro-regulators in the art world and beyond are loading up, armed with the latest judiciary ammunition, unable to see the wood from the trees. It seems that many simply dislike Prince’s work, and their taste has replaced a reasonable and nuanced argument. The claim that increased copyright regulation will make ‘better’ art demonstrates a fundamentally poor understanding of visual art, and as a result is flat wrong. Restricting artists, through a narrow legal definition, as to the way they can use appropriated materials is about limitation and impoverishment, not betterment.
