“Immature poets imitate; mature poets steal; bad poets deface what they take, and good poets make it into something better, or at least something different,” wrote T.S. Eliot in a 1920 essay titled "Philip Massinger." I’m not sure where artist Richard Prince would fall on the Eliot scale, but according to Manhattan federal court judge Deborah Batts, he’s legally a thief. Judge Batts ordered Prince and the Gagosian Gallery to destroy millions of dollars of artwork as part of the judgment in favor of photographer Patrick Cariou, who claimed that Prince’s appropriation of his photography crossed the line of fair use into the dark underworld of intellectual theft. Appropriation in art has been all the rage in modern art for decades, and not just by Prince, but this decision calls into question the legality (and thus the practicality) of appropriating the art of others into your own. Is Eliot still right to say that stealing is a sign of “maturity”? Or is this “modern maturity” a crime gone unpunished, until now?
All the gory details of the decision can be found here for those willing to wade through the swamp of 38 pages of legalese. For the rest of us, here are the facts: In December 2007, Richard Prince opened a show at the Gagosian Gallery titled Canal Zone. Several works in that show consisted of paintings in which Prince appropriated photographs from Cariou’s 2000 book Yes, Rasta, which collected images Cariou had taken of Rastafarians in Jamaica over the course of 6 years. Prince essentially lifted 41 of Cariou’s photographs without permission and made alterations that he felt constituted “fair use.” In one case (shown above), Prince took a photo of a man standing and “placed” an electric guitar in his hands while obscuring his face with three large blobs.
Cariou, who received none of the millions of dollars Prince made from sales of these works, filed his lawsuit in 2008. Drawing on legal precedents from similar cases in music and film as well as a 1992 case against Jeff Koons (who has since filed his own anti-appropriation lawsuits), Cariou’s lawyers argued against Prince and the Gagosian’s claims that Prince’s works were “transformative” and (insultingly) that Cariou’s photos were “genre” photography and nothing all that unique or special to begin with. "Unfortunately for Defendants [Prince and Gagosian],” Judge Batts concluded, “ it has been a matter of settled law for well over one hundred years that creative photographs are worthy of copyright protection even when they depict real people and natural environments." Calling Prince's paintings " infringing derivative works," the judge demanded that all the offending paintings and any catalogs in the Gagosian’s possession from the show be destroyed. (Those holding catalogs from Canal Zone at home have an infamous collectible in their possession.) The real pain—monetary damages to be paid to Cariou—comes in May.
I doubt that this decision will be the last word on the modern technique of appropriation. “Transformative” and “genre” simply aren’t terms well defined enough to be applied on a large scale. Also, it takes an artist of Richard Prince stature to command prices large enough to entice (and make worthwhile) lawsuits with the ultimate goal of reparations. Perhaps Cariou truly sought justice for himself and all other photographers denigrated as mere “genre” documentarians, but he’ll have millions of reasons to be glad he brought the full weight of the American justice system to bear on his appropriator. And that raises the question of whether Prince would have faced destroying his works if he had only shared the wealth with Cariou.
If Marcel Duchamp slapped a mustache on a reproduction of the Mona Lisa today and called it L.H.O.O.Q. (a French pun for “she has a hot ass”), would the Louvre bring legal heat in asking for a cut of any subsequent sales? Almost a century after sending that infamous nude down that infamous staircase, Duchamp still rules the day with his blurring of the lines of art versus not-art. If you agree with Prince that Cariou’s photos are not art, then Prince’s additions were “transformative.” If you agree with Cariou that his photos are indeed art, than almost nothing Prince could have added would be considered “transformative” enough for a court of law.
At some point more murky terms—parody and homage prominent among them—were most likely bandied about the case, further blurring and confusing the issue. At the very least, the Prince—Cariou case illustrates the extent to which our culture has become almost relentlessly self-referential to the point that it steals from itself. That self-thieving self-referencing can easily turn into cannibalism eating away at all attempts at substance until reaching the Seinfeldian state of being a culture about “nothing.” At that point, the modern maturity of art slides gravewards into a doddering old age.
[Many thanks to Hugh for drawing this story to my attention.]