Essays

How to Sue Richard Prince and Win

By Nate Harrison on July 13, 2015

 Today, Richard Prince, still glowing in triumph after his own copyright battle with Patrick Cariou, is simply screen-capturing his own participation on Instagram—brazenly selling inkjet enlargements of other people’s image uploads for $90,000 a pop. What’s more, Prince is adored for it.

How to Sue Richard Prince and Win

By Nate Harrison, July 10, 2015

My how attitudes have changed! Twenty-five years ago, an emerging artist by the name of Jeff Koons lost a copyright infringement lawsuit brought against him after he appropriated a black-and-white photograph of a couple holding a litter of puppies, and translated it into a life-size, wood sculpture. Despite the object having noticeably different formal characteristics than the photo, despite it catering to a very different audience, and despite Koons describing creative intentions vastly different than those of the aggrieved photographer Art Rogers, courts nonetheless ruled that the artist had crossed a line. While some fretted over the outcome’s long-term chilling effects on appropriation art, many outside the art world’s elitist confines felt Koons got what he deserved.

Today, Richard Prince, still glowing in triumph after his own copyright battle with Patrick Cariou, is simply screen-capturing his own participation on Instagram—brazenly selling inkjet enlargements of other people’s image uploads for $90,000 a pop. What’s more, Prince is adored for it. With few exceptions, his New Portraits series is being discussed as if it’s a foregone conclusion that it’s entirely legal (and good art). As it turns out, the art world, all those years ago, had nothing to worry about. No, the problem with appropriation in art isn’t that the law is unduly restricting it. On the contrary, it’s everywhere. In part because of technological advances, in part because artistic avant-gardism in the ‘80s normalized appropriation as a technique, and in part because copyright jurisprudence itself has shifted, appropriation art enjoys a vitality it has never before had. But its freedom has given many of its practitioners a head rush, and because of it they’ve lost their way, squandering the critical resonance that has always been appropriation art’s source of strength. To remedy this, in the name of all that is important and meaningful in the act of appropriating, I am going to tell you how that strength can be re-tapped. That is, I am going to tell you how to sue Richard Prince for copyright infringement and win.

The main thrust of any allegation would have to collapse the notion that Prince’s Instagram works constitute fair use under copyright law.

The main thrust of any allegation would have to collapse the notion that Prince’s Instagram works constitute fair use under copyright law. This might seem a daunting task, given that in Cariou v. Prince, the appellate court not only handed Prince a decisive win, but also expanded the boundaries of the doctrine. In short, the ruling made Prince appear practically untouchable, which is no doubt helping fuel his latest shenanigans. Yet those who claim that what Prince is doing is “transformative,” that it is something other than what it really is—cynical opportunism masquerading as a critique of authorship—give the distinct impression that they don’t know much about contemporary art, don’t follow fair use developments, or both. Indeed, one need look no further than the language in the Cariou v. Prince circuit opinion itself to conclude that while expanded, fair use in its formulation there would not treat Prince as nicely the second time around. But let’s not stop there. Our task is a noble one, which means we need to be thorough. We’ll need to examine fair use from all angles. And this, in turn, requires an understanding of just what fair use is, and where it came from—in other words, a quick but necessary history of fair use. Let’s begin.

The doctrine of fair use is an integral part of U.S. copyright law. It acts as a safety valve that places certain limitations on the otherwise extensive bundle of rights granted to authors in the expressions they create. Fair use essentially says: in the production of culture it is sometimes not only acceptable but also necessary for secondary users to appropriate primary materials without permission in order to realize the secondary user’s own right to free speech. As it is currently written, such uses include (but are not limited to) “criticism, comment, news reporting, teaching, scholarship, or research.” Allowing secondary authors to take materials in these situations, without permission, ensures a healthy public exchange of ideas. In this sense, rather then being treated as a restriction on an absolute property right, fair use should be understood as a necessary, mediating layer that fulfills copyright’s core objective as per the Constitution: “To promote the Progress of Science and useful Arts.”

The idea of fair use has existed as long as copyright itself. In the United States’ early formation, copyright was applied primarily to book publishing. At that time courts generally tolerated translations, abridgments, and adaptations of books, casting them as products of creative labor in their own right that contributed to the intellectual growth of a country just beginning to decouple itself from the dominance of English writings. With few exceptions, any production short of verbatim copying was recognized as a welcome contribution to American literary culture. However, the growth of publishing through lax regulation paradoxically had the effect of expanding specialized markets, with the value of “derivative works” becoming more apparent to primary authors. This, in turn, resulted in intellectual property advocates, legislators, and courts eventually curtailing secondary authors’ translations and the like. By the mid-nineteenth century, judge-made law had established a set of evaluative criteria to help decide whether or not secondary works infringed the copyrights of original materials.

nightcoregirl

CF4AkZQWAAAPWy3

jxipblcryyois3cisoag

Photo Jun 17, 8 26 54 PM

So how would Prince’s New Portraits hold up under fair use’s “reasonable viewer” test? The short answer is: not well. It’s difficult to imagine the works, which are exact copies of various users’ Instagram posts apart from their size and they’re existing in “analog” form, convincing anyone scrutinizing them that they transform the originals.

With minor modifications, it is these fair use standards that were codified into the Copyright Act of 1976 (more or less the current copyright law). Commonly referred to as the “four factors,” the criteria consider “1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; 2) the nature of the copyrighted work; 3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and 4) the effect of the use upon the potential market for or value of the copyrighted work.” The four factors furnish courts with a set of guidelines to aid in an overall infringement calculus; the idea is that they be applied holistically in order to provide a consistency in fair use determinations. Thus, an image appropriated for overtly commercial motives does not necessarily make it an infringement, nor does a non-commercial purpose guarantee that such use is fair. Judges are, in theory, supposed to weigh all factors in relation to each other before rendering a final decision.

In practice, of course, things are never this simple. Both the strength and the weakness of the fair use doctrine is that it can be (and has been) widely and idiosyncratically interpreted. Courts—especially when dealing with the murky territory of art—have sometimes given preference to one factor over others. In some periods it was the market factor that was given most weight. At other times, the amount of copying was foregrounded, as if appropriating “too much” was inherently unethical. In short, fair use decisions both before and after the federal implementation of the four factors were far from uniform, and sometimes crossed over into the nonsensical.

It was the apparent arbitrariness of judicial decisions that, in 1990, led federal judge Pierre Leval to pen what would become one of the most important treatises on the concept of fair use. Leval’s “Toward a Fair Use Standard” aimed to realign the doctrine with the central aim of copyright law: to “stimulate activity and progress in the arts for the intellectual enrichment of the public.” Recognizing that all creative activity is in some part derivative, Leval likewise considered fair secondary uses that add “value to the original…transformed in the creation of new information, new aesthetics, new insights and understandings.” Leval’s essay essentially privileged the first factor, the purpose and character of the use, and the degree to which the secondary work was transformative of the originating expression.

It is the ruling in Campbell v. Acuff-Rose Music from 1994 that established the rhetoric of the transformative within fair use. Quoting directly from Leval’s essay, the U.S. Supreme Court found that hip-hop group 2 Live Crew’s remake of Roy Orbinson’s song Pretty Woman did not infringe the latter’s copyright, but instead transformed the original into a parody, endowing it with new meaning. Crucially, the decision also declared that “the more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.” Such a statement would seem a boon from the perspective of a visual artist who relies on the appropriation of copyrighted materials (and who also sells art works, often for large sums of money). And it was precisely an appeal to the transformative aspects of fair use that Jeff Koons made when defending his appropriation of photographer Andrea Blanch’s image for a painting, a decade later. In Blanch v. Koons, the artist was able to convince courts in large part through explaining his artistic intention, how his use of Blanch’s picture transformed it from a typical fashion advertisement into part of a collage that commented on mass consumption.

EXPLORE ALL RICHARD PRINCE ON ASX

Yet it is, without a doubt, in Cariou v. Prince where the notion of the transformative within fair use is itself radically transformed. At issue was Prince’s appropriation of a bulk of photographer Patrick Cariou’s images portraying Jamaican Rastafarians, for use in a series of paintings. During the proceedings, Prince refused to articulate the meanings of his works, or to clarify why it was Cariou’s photos in particular that the artist needed to appropriate in order to best express his creative vision. The district court ruled that, because Prince could not sufficiently explain his actions or his relationship to the original materials, his paintings did not seem to refer back to or in some way comment on Cariou’s images, and were thus not transformative but rather derivative works of art. However, the circuit court later reversed the decision. Importantly, the judges there dismissed both the requirement that transformative uses necessarily and directly refer back to their source expressions, and the idea that artistic intent, or even the ability of an artist to explain his or her creative rationale, factors into whether or not an art work can be considered transformative. Instead, for the court the critical question centered on “how the artworks may ‘reasonably be perceived.’” Of course the judges designated themselves as the “reasonable” observers, and in applying what can only be described as superficial formal comparison, ruled that most of Prince’s paintings did not infringe. Five of the thirty paintings in question were sent back to the district court because the appellate judges were unable to rule on them with certainty, but Cariou and Prince reached an undisclosed settlement that rendered any final determination moot. Overall the outcome was a major triumph for Prince.

unnamed

Yet the impact of the ruling went well beyond just one artist. Cariou v. Prince signaled what I call a “postmodern turn” in copyright jurisprudence. More than validating the notion that cultural production is derivative, the court gave its legal stamp of approval to a concept often attached to postmodernist discourse, one that anybody having attended art school in the U.S. over the past few decades will no doubt recognize: Roland Barthes’ “death of the author.” The court essentially indicated that authorial intent is of lesser concern, because what ultimately yields meaning in a work is that which the reasonable viewer (not unlike Barthes’s newly-birthed “reader”) brings to it. But with the judges taking a kind of “know it when we see it” approach, they also took a big step forward in de-intellectualizing appropriation art, as if its quality rested merely in the act of this or that type of aesthetic treatment. In this conception of appropriation art, content subordinates to form. This way of thinking poses all sorts of problems, for it is precisely carefully chosen content, brought into a carefully chosen context, that has driven the development of a critical appropriation art, from Marcel Duchamp to John Heartfield, from Sherrie Levine to Martha Rosler. Content, and intent, matter.

So how would Prince’s New Portraits hold up under fair use’s “reasonable viewer” test? The short answer is: not well. It’s difficult to imagine the works, which are exact copies of various users’ Instagram posts apart from their size and they’re existing in “analog” form, convincing anyone scrutinizing them that they transform the originals. And as the court in Cariou v. Prince made clear, its decision there “should not be taken to suggest…that any cosmetic changes to the photographs would necessarily constitute fair use. A secondary work may modify the original without being transformative. For instance, a derivative work that merely presents the same material but in a new form, such as a book of synopses of televisions shows, is not transformative.”

Let us dispense with this false binary between the purpose and character of what Prince is doing with Instagram (ostensibly “art”) and the purpose and character of Instagram itself (“not art”).

The longer answer to our question: it depends on who the reasonable viewer is. Just as the Cariou v. Prince circuit judges measured transformative-ness mostly by assessing formal characteristics, so too might the average joe base an opinion on how the works look compared to the originals. But if the reasonable viewer were an art critic, or scholar, or in some way connected to or familiar with recent art history, then perhaps more than just formalist analysis would come into play. Issues around context, and artistic intent, might resurface. Oh but the works are obviously transformative—they’re hanging in an art gallery, the artist meant for them to be understood differently—they’re transformative because they’re art! But why are they art? Because they’re transformative! Such circular reasoning is a symptom of a vexed art world that has continually struggled with its relationship to mass culture. On the one hand, contemporary art constantly seeks to break outside of itself, to be meaningful beyond the discourses and institutions of art, to, as the cliché of avant-gardism goes, “bridge the gap between art and life.” On the other hand, artists and their supporters scurry back to the safety of an autonomous field of art when it suits their interests. Look at Richard Prince! Blurring the lines between art and social media—brilliant! What’s that? He might have infringed some copyrights? That’s impossible—Prince is an artist! What he makes is art!

Let us dispense with this false binary between the purpose and character of what Prince is doing with Instagram (ostensibly “art”) and the purpose and character of Instagram itself (“not art”). At the risk of pointing out the obvious: Instagram operates as a platform that allows its users to upload images. Many users post portraits of themselves (“selfies”), transmitting glimpses into their subjectivities for other users to see, users who can then follow the posts and comment on them. Trading lifestyle snapshots and banter, Instagrammers often use the social media platform, for better or for worse, as a vehicle through which they project their own sense of self-importance. Richard Prince, or “richardprince4,” or “richardprince1234,” is one such Instagrammer. One need only peruse Prince’s own feed, as well as those whose images he’s appropriated, to grasp that while New Portraits may sell for high prices at Gagosian, they are nonetheless thoroughly embedded within the logic and culture of the promotional self that is Instagram. There is nothing in Prince’s appropriations, neither in terms of form nor content, that rises to the level of fair use “commentary” that is not already present in the actual comments that Prince, as a participant in Instagram, posts in the first place. The artist taking the additional step of printing out larger versions of the images and comments and selling them as his art only makes all the more transparent the cynical belief in Prince’s Midas touch. Again we encounter the self-fulfilling, circular logic: Richard Prince transforms Instagram into art! How? By being Richard Prince! How did he get to be Richard Prince? By transforming non-art into art!

Yet there are other authors in our Inst-appropriation tale. Totally unremarked upon thus far has been the fact that the comments printed onto the New Portraits works aren’t Prince’s alone. Each canvas also displays at least one, if not two or three, comments by other users. I would venture to say that the productions are actually unintentional collaborations, and complicate the authorial narrative Prince is so keen to establish. They beg the question: why wouldn’t these other users’ comments be just as integral to the reading of the works? And perhaps most disingenuous of all, many if not most of the images Prince appropriated are authored by Millennials, a demographic that often exhibits a carefree attitude about online privacy and an unfortunate ignorance about how copyright and fair use function. Take user “killedthemfortheurl,” for example, whose selfie greets visitors on the Gagosian web page promoting Prince’s London exhibition. When one of the commenters on her feed asks if Prince had sought her permission for his image use, she replies “nope, he can use anybody’s image on IG because once it’s on Instagram it’s not your personal property anymore.” Even for the less legally-minded, a quick web search reveals this to be absolutely untrue.

It’s clear that the reasonable observer variant of transformative fair use would spell trouble for Prince’s New Portraits. But let us suppose that a court set aside the precedent established in Cariou v. Prince, revisited Blanch v. Koons, and once again pondered the importance of artistic intent. While we don’t have anything on record such as the deposition Prince gave during his suit with Cariou, we do have the artist’s words in the form of a press release sent out promoting the Instagram series. In it, Prince recounts his past experiences “taking” portraits of people he didn’t know, without their permission, by rephotographing pictures of them and printing the results. Some years later, he, in all his curiosity, discovers social media. “What’s yours is mine,” he proclaims. Prince proceeds to apply his appropriating mode of portraiture to the digital age, now with the addition of the artist’s comments under each taken picture. Through what Prince describes as a fortuitous “hack,”—the plain editing of comments that is second nature to any smart phone user under the age of thirty—he is able to shift his comments to the top of his target user’s post, making image and text ripe for enlargement and printing. And just what are those comments, so thought-provoking that they would surely be found to elicit “new information, new aesthetics, new insights and understandings,” and thus bolster a fair use claim? “The language I started using to make ‘comments’ was,” so writes Prince, “Non sequitur. Gobbledygook. Jokes. Oxymorons. ‘Psychic Jiu-Jitsu.’” Transformative indeed.

50

Photo Jul 01, 7 45 43 AM

Photo Jul 04, 3 16 30 PM

Prince concludes his press release with threadbare tropes related to early internet rhetoric and avant-gardism. “Everyone is fair game,” he writes; the “playing field” has been leveled, although even in his newfound position Prince is nonetheless unsure his Instagram works would qualify as art. “And that was the best part,” Prince boasts, “Not looking like art.”

Prince concludes his press release with threadbare tropes related to early internet rhetoric and avant-gardism. “Everyone is fair game,” he writes; the “playing field” has been leveled, although even in his newfound position Prince is nonetheless unsure his Instagram works would qualify as art. “And that was the best part,” Prince boasts, “Not looking like art.” Setting aside a dated radicalism that has long since expired (there is no better way to assume the artist pose than by claiming not to make art), it would be much easier to take seriously Prince’s libertarian, anti-establishment posturing if, at the bottom of his press release, there weren’t both a copyright assertion (“All images are subject to copyright. Gallery approval must be granted prior to reproduction.”) and an invitation to join the artist on Instagram. This is nothing other than what I’ve called elsewhere the reassertion of authorial agency in postmodernity, a pseudo-commentary on authorship in the twenty-first century. Judging by the press release, Prince’s intent to purloin without responsibility other than to himself is unambiguous.

Finally, our legal strategy would also have to consider fair use’s other tests. As for the second factor, the nature of the copyrighted work, it’s safe to say that the Instagram posts in question qualify as expressions fixed in a tangible medium (what copyright law requires in order to garner protection), even if that means we’re talking about computer files occupying hard drive space on a server rack somewhere. Prince is absolutely appropriating copyrighted material. With the third factor, the amount and substantiality of the portion used in relation to the copyrighted work as a whole, it’s likewise clear that Prince is appropriating the entirety of the copyrighted images. But there’s more: Prince is not just copying the images and comments; he’s also taken the Instagram “look and feel” itself. It’s arguable that Instagram may have its own infringement claim—that Prince is exploiting its well-known interface. The fourth factor, the effect of the use upon the potential market for or value of the copyrighted work, is, admittedly, the most difficult to weigh against Prince. There is no doubt Prince’s endeavors are commercial. But it would be tough to assert that the artist is usurping the market for the originals, if only because the users from whom Prince has appropriated images probably don’t depend on their images for their livelihoods, and most likely don’t generate any revenue. The key word in the fourth factor is “potential,” meaning the argument would have to emphasize the possibility that if Prince’s uses were found to be fair, a dangerous precedent might be set for image acquisition online. Going forward, photographers and others who rely not only on selling their images for a living but also using the internet to promote their work could find themselves without much recourse when others appropriate their images without licenses for various “creative” reasons. Oh but Richard Prince did it, I can too! I’m an artist!

So there you have it. Now, after reading this, some may label me anti-artist, or accuse me of being a conservative, copyright apologist. In fact, I’m both an artist and a strong believer in fair use. Moreover, I think that for all it’s controversy, and even despite its flimsy rationale, the final opinion in Cariou v. Prince was the correct one. In many respects Rogers v. Koons and Cariou v. Prince are similar; in neither case did the respective artist make a case for the specific connection between the original and secondary works. Yet both artists were certainly attempting to take their appropriations in a different directions, towards new understandings and meanings that were discernible through artistic intention, context, and aesthetics. Artists should be encouraged to explore the possibilities that copying provides. But that doesn’t absolve them from taking responsibility for their actions. Artists are obligated to the images they re-use. It’s important that they do critical things with them, and not merely reproduce cultural and economic capital for the one percent while feigning comradeship with the social media masses. In this sense, it’s even more important now than in the pre-internet 1980s that artistic appropriation with a critical force exists, even if that means we have to, as Alain Badiou has suggested, become the pitiless censors of ourselves.

I’ll see you in court!

Nate Harrison is an artist and writer working at the intersection of intellectual property, cultural production and the formation of creative processes in modern media. Nate serves on the faculty at the School of the Museum of Fine Arts, Boston, and lives in Brooklyn, New York.

(All rights reserved. Text @ Nate Harrison. Images @ the Respective Artists.)

Connect to the ASX world! Like us on Facebook, follow us on Twitter and Instagram.

unnamed

Get more articles like this
sent directly to your inbox