A few thoughts on Cariou vs. Prince

A few days ago, US District Judge Deborah A. Batts ruled that Richard Prince had violated Patrick Cariou’s copyright when using some of the images from the Yes Rasta book to produce Canal Zone. Much has since been written about this ruling, here are a few of the reactions/takes: Rob Haggart/A Photo Editor, Ed Winkleman, Donn Zaretsky, Paddy Johnson. In a nutshell, photographers for the most parts are giddy that Prince lost, whereas the non-photo art world is appalled by the ruling. (more)
I’ve been trying to look at the different aspects since the ruling came out, trying to figure out what I thought of it. My first comment is that both the original images and the ones produced out of them in principle are not really worth talking about. If 95% of all contemporary art is crap - I remember I saw someone make that claim somewhere - then well, that’s really what we’re dealing with here. But of course, that’s not the issue, since making bad art or taking bad photographs is not illegal.
My second reaction was that as much as I dislike Prince’s lazy Canal Zone, I certainly do not agree with the outcome. Quality issues aside, Prince certainly transformed the sources images to produce something new out of them. That left me somewhat puzzled as to how a judge could rule against something that was so obvious. I suppose this reaction is pretty much in line with what most of the art crowd was/is thinking. I’m assuming some photographers might already start writing angry emails by now, but read this post first and complain later (if you have to).
My third reaction (the one that ended up in my tweets) was to blame the way copyright is constructed in the first place. Copyright clearly is intended to protect the rights of the makers of images (in reality it protects much more than that, but let’s stick with images here), so that if you take a photo someone else cannot just take that photo and make money off of that. There’s nothing wrong with that. Of course, in an art context, things aren’t quite so simple, since if the history of art teaches us anything it is that artists have always taken other artists’ images to create new ones. Copyright contains a clause that - in part - is intended to deal with exactly this case (note: I’m writing about US copyright here), the so-called “fair use” clause.
Basically, if you want to take someone’s photograph and use it you have to prove that it is fair use. If I take someone’s photo as is to make a quick buck, that’s obviously not fair use (I’m not so interested in extreme appropriation art, so please don’t email me about this). If I take someone’s photo to illustrate an article that I wrote about said photo that is fair use (in fact, that is one of the basic parts of fair use).
It gets iffy when I take someone’s photo to produce a new image. I’m going to simplify this a little bit, but in a nutshell, photographers tend to think that that case amounts to “stealing” the photo, whereas the art crowd tends to think you can do whatever you want.
The reality, of course, is that you cannot do whatever you want and that taking a photo and using it is not necessarily stealing. I’ve featured a lot of collage art on this blog recently. Collages are an obvious case of someone taking some images and transforming them into something else.
Before going into the details here - this is typically where discussions tend to get heated - I’d like to point out that Prince et al. could have probably easily avoided this whole debacle if they had worked on a licensing deal. They decided not to do that (see Rob’s post). I think that was a tremendous mistake, especially given the amount of money Prince’s art sells for. It’s not very hard to understand how the judge concluded from this that Prince et al. were acting in bad faith.
Of course, we could argue that the way copyright law is phrased is less than ideal for art cases, and I’d totally agree with that. But the law is what we have right now, and whether we like it or not, the law is what we have to work with.
I’ve seen a fair amount of huffing and puffing on art blogs about how the lawyers involved in this case don’t know much - if anything - about art. Obviously, that’s the case, but it misses the point entirely. The legal experts involved in this case - the lawyers and the judge - dealt with the legal aspects of this case. A court is no art school. You can have smart discussions about “appropriation” in art school or in art magazines, but in a court, you better play by the rules the court is based on.
Which means that if you cannot explain to a legal expert why your taking of someone else’s images is covered by fair use (whether, in other words, it is truly transformative) then you don’t have a case - and that’s exactly what happened to Prince et al. Judges base their rulings on the law - and not on any other principles that we would like them to base them on. This is why judges write legal opinions, and art experts write art reviews.
I’ve read comments that artists don’t like to explain their work or discuss the intentions of their work. That is, so goes the theory, for the viewer to figure out. Fair enough. Unfortunately, in a court it doesn’t work that way. As I said, a judge has to make a decision based on legal criteria - in this case copyright law, and not on what the art world might think.
Of course, I might be missing a lot of details here. But I’m tempted to conclude that the ruling itself is not as bad as it looks. Prince et al. blew their own case by refusing to contact Cariou and by refusing to explain how the new images were transformative. Prince’s “I did this because I can” defense got the judge to say: “No, you cannot.”
Copyright law is not ideal, but it still offers ways to defend one’s transformative use of images. This case might serve as a precendent for future cases. But in a future case, all a crafty defense lawyer would need to do is to have her or his client explain her or his case for “fair use,” realizing that a court of law is not an art school. What is more, cases like this need not automatically end up in front of a judge, because there are many ways to settle disputes like this outside of a court room.
So it seems to me that not much has changed really. Current copyright law is less than ideal. But it helps to realize that if applied to an art context it tries to balance two fundamentally opposing forces, namely commerce (aka artists’ ability to survive by getting compensated for their work) and artistic freedom (aka artists’ ability to take existing pieces of art to produce new ones). Putting an emphasis on only one, while completely ignoring the other, simply won’t work.