Judges to decide on the "fairness" of appropriation art

One of the most fascinating legal cases in recent time, slightly outside of the norm, is rumoured to be coming to an end, with judges set to make a major decision that will impact on both copyright laws and the ability of artists to “lend” from others.
The story began in 2008, when the French photographer Patrick Cariou filed a lawsuit against the appropriation artist Richard Prince for copyright infringement, arguing that his photographs had been used without his consent.
Over a six-year period Cariou had shot images of Rastafarians in Jamaica, which were published in a book entitled Yes, Rasta, and some 40 of these images were subsequently used by Prince, which later featured in an exhibition at the Gagosian in 2007.
Prince didn’t dispute the fact that he had modified the images for his show Canal Zone, but argued that his motivation was purely artistic, in line with the philosophies of appropriation art, and therefore was protected under the US law of “fair use”.
Appropriation art really started to come into being in the twentieth century, the zeitgeist of modernity all about experiment and change. This can be seen in Pablo Picasso’s Composition with Fruit, Guitar and Glass, which borrowed from pre-existing “elements”. Andy Warhol’s Campbell’s Soup Cans was another example, more explicit in its obvious source of inspiration.
Practitioners of this form of art argue that their use of pre-existing things, be it another painting, photographer or sculpture, is a creative exercise. By manipulating it, rewiring it, a new meaning is created. The new work is then independent to the original.
Round one, so to speak, went to Cariou, with judge Deborah Batts ruling against Prince’s claim of fair use in March 2011, stating that his work did not substantially transform the photographs. She ordered that the artist’s work be delivered “up for impounding, destruction, or other disposition,” as determined by the plaintiff. The art world was shocked into silence.
In an interview with Andre M. Goldstein, ARTINFO’s executive director, the French photographer was asked whether the judgement, which was subsequently appealed, hence the anticipation of the latest ruling, would have a negative impact on young artists.
“It’s going to educate them. I don’t think it’s going to harm anyone. I don’t think artists should be offered a different standard from anyone else. When you’re 12 years old your parents tell you ‘don’t steal the candy,’ and we all try to apply that rule, and if you don’t people sometimes end up in jail,” he responded.
“I’m interested in Warhol’s use of the Campbell soup can and Rauschenberg using readymade things — that I’m okay with. If it’s to steal photographs or paintings to create something, you shouldn’t be an artist in the first place. To me Richard Prince is more of an art director than an artist. I think he’s a good art director, and a great thief.”
What becomes evident is that there is a very fine line between artistic credibility and a sense that an artist has just been lazy. The difficulty arises in what we perceive to be a fair use, and it is here that trenches are drawn.
One argument is that any artist that appropriates an existing thing must, in their use of it, make some direct comment on it. If not, then the product of anybody’s labour, be it a song, a book or a painting, can be used without any kind of reverence or financial reward made to it.
An artist will dispute this assertion, claiming that it is illogical for this approach to be standardised within art. Appropriation must not be mistaken as being theft, as it is akin to using raw materials. As in the case of one of Prince’s adaptations to Cariou’s photographs, where a Rastafarian was given a guitar, the saturation altered and his face modified with splodges, every component is a “piece”, every bit created a new whole.
Neither side, it’s fair to say, is without merit, which is exactly why this case has been so intriguing. Both Cariou and Prince are, in their own distinct ways, creative individuals, engaging with the world and their own life through their vocations.
The very idea of art exists in its freedom to explore ideas without restraint, and this, in part, can jar against the conventions of the time in which it is created and, as this case has revealed, the law of the land.
Likewise, copyright is a logical protection that allows people to make sure their work is not used in an unjust way, be it for financial reasons or to market a commercial product, as well providing them absolute control over their creation.
What then constitute a fair decision? Well, we’ll let the judges call that one.
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