Richard Prince scored an important win at the Second Circuit Court of Appeal against photographer Patrick Cariou yesterday. And it could have big implications for artists who appropriate artistic work that’s gone before.
As you may know, Cariou had successfully sued Prince for copyright infringement, claiming that the artist appropriated his copyrighted photos of Rastafarians taken in Jamaica for a 2000 book, Yes Rasta. Prince had admitted taking the work, altering and incorporating the photos into a series of paintings and collages which he called Canal Zone. These were exhibited in 2007 and 2008 at the Gagosian in New York. In 2011 a judge ruled that Prince’s work inappropriately borrowed from Cariou’s.
At a lower court, Cariou had been successful in his case against the artist. Yesterday, however, the Second Circuit reversed the decision in part with judges finding that 25 of the 30 Prince works in questions are indeed fair use. A lower court judge will determine the remaining five.
According to Second Circuit circuit judge Barrington Parker’s decision, “What is critical is how the work in question appears to the reasonable observer, not simply what an artist might say about a particular piece or body of work. Prince’s work could be transformative even without commenting on Cariou’s work or on culture, and even without Prince’s stated intention to do so.” You can read a bit more about that intricacies in the court documents which you can read in full here.
"These twenty-five of Prince’s artworks manifest an entirely different aesthetic from Cariou’s photographs," writes Judge Parker. "Where Cariou’s serene and deliberately composed portraits and landscape photographs depict the natural beauty of Rastafarians and their surrounding environs, Prince’s crude and jarring works, on the other hand, are hectic and provocative."
The judge also notes that Cariou used black-and-white while Prince created collages, incorporated colour, and made other distortions. ”Prince’s composition, presentation, scale, colour palette, and media are fundamentally different and new compared to the photographs, as is the expressive nature of Prince’s work.” Despite what seemed like Prince’s initial reluctance to argue the transformative nature of his work as forcefully as one might perhaps expect, the appeals court came down on that side anyway.
"Here, looking at the artworks and the photographs side-by-side, we conclude that Prince’s images have a different character, give Cariou’s photographs a new expression, and employ new aesthetics with creative and communicative results distinct from Cariou’s. Our conclusion should not be taken to suggest, however, 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."
Of the remaining five images, Judge Parker says, “Although the minimal alterations that Prince made in those instances moved the work in a different direction from Cariou’s classical portrature and landscape photos, we can not say with certainty at this point whether those artworks present a ‘new expression, meaning, or message.’” That judgement - when it comes - will prove crucial in giving judge’s any future guidance on determining what’s transformative and what is not.
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Sherrie Levine (born April 17, 1947 in Hazleton, Pennsylvania) is an American photographer and appropriation artist.
Much of Levine’s work is in the form of a very direct version of re-photography. A larger category of re-photography and collage is the impulse of artists using this kind of appropriation as its own focus — someone who pulls from the works of others and the worlds they depict to create their own work. Appropriation art became popular in the late 70’s although its tendency can be traced from the early Modernist works specifically using collage. Other appropriation artists such as Louise Lawler, Vikky Alexander,Barbara Kruger and Mike Bidlo all came into prominence in New York’s East Village in the 1980s. The importance of appropriation art in contemporary culture lay in its ability to fuse broad cultural images as a whole and place them toward narrower signs of personal interpretation.
Levine is best known for the work shown in “After Walker Evans”, her 1980 solo exhibition at the Metro Pictures Gallery. The works consist of famous Walker Evansphotographs, rephotographed by Levine out of an Evans exhibition catalog, and then presented as Levine’s artwork with no manipulation of the images. The Evans photographs—made famous by his book project Let Us Now Praise Famous Men, with writings by James Agee—are widely considered to be the quintessential photographic record of the rural American poor during the great depression. The Estate of Walker Evans saw it as copyright infringement, and acquired Levine’s works to prohibit their sale.
‘When I started doing this work, I wanted to make a picture which contradicted itself. I wanted to put a picture on top of a picture so that there are times when both pictures disappear and other times when they’re both manifest; that vibration is basically what the work’s about for me – that space in the middle where there’s no picture.’
Fair use is a limitation and exception to the exclusive right granted by copyright law to the author of a creative work. InUnited States copyright law, fair use is a doctrine that permits limited use of copyrighted material without acquiring permission from the rights holders.
The first factor is regarding whether the use in question helps fulfill the intention of copyright law to stimulate creativity for the enrichment of the general public, or whether it aims to only “supersede the objects” of the original for reasons of personal profit. To justify the use as fair, one must demonstrate how it either advances knowledge or the progress of the arts through the addition of something new. A key consideration is the extent to which the use is interpreted as transformative, as opposed to merelyderivative.