Richard Prince Loses Fair Use Argument

- - copyright

In December of 2008 photographer Patrick Cariou filed suit against Ricard Prince, Gagosian Gallery, Lawrence Gagosian and Rizzoli International Publications in federal district court (here). The suit came about after Prince appropriated 28 images from Patrick’s Yes Rasta book for his Canal Zone exhibit at the Gagosian gallery. Several of the pieces, as you can see from the comparisons below ,were barely changed under the “artist’s” hand.

Yesterday, US District Judge Deborah A. Batts ruled on the cross-motions for summary judgment:

Defendants Richard Prince, Gagosian Gallery,  Inc., and Lawrence Gagosian seek a determination that their use  of Plaintiff’s copyrighted photographs was a fair use under the relevant section of the Copyright Act, 17 U.S.C. §§ 107(1)-(4), and that Plaintiff’s claim for conspiracy to violate his rights under the Copyright Act is barred by law. Plaintiff seeks summary judgment in his favor on the issue of liability for copyright infringement.

She found that the use by Prince was not Fair Use, the conspiracy claim was found to be barred by law and Patrick’s issue of liability for copyright infringement was granted in its entirety. In other words, Patrick won.

I’m sure there will be an appeal, but this is quite a victory for photographers and the judgment is fascinating reading for fair use buffs (download it here), What I really found interesting is how badly most people (myself included) interpret the transformation part of appropriating works. Everyone talks about adding value through transformation but the reality is that you must be commenting on the original image or expression in some way. This line quoted from Rogers vs. Koons puts the nail in the idea of adding value as some kind of transformation “If an infringement of copyrightable expression could be justified as fair use solely on the basis of the infringer’s claim to a higher or different artistic use . . . there would be no practicable boundary to the fair use defense.” Transforming a picture of President Obama into a poster does not qualify nor does commenting on commercial advertising by taking close up shots of cowboys in cigarette advertising images.

I’ve included some highlights from the 38 page filing:

Some of the paintings, like “Graduation (2008)” and “Canal Zone (2008),” consist almost entirely of images taken from Yes, Rasta, albeit collaged, enlarged, cropped, tinted, and/or over-painted, while others, like “lIe de France (2008)” use portions of Yes, Rasta Photos as collage elements and also include appropriated photos from other sources and more substantial original painting.

In total, Prince admits  using at least 41 Photos from Yes, Rasta as elements of Canal  Zone Paintings

Other than by private sale to individuals Cariou knew and liked, the Photos have never been sold or licensed for use other than in the Yes, Rasta book. However, Cariou testified that he was negotiating with gallery owner Christiane CelIe (“CelIe”), who planned to show and sell prints of the Yes, Rasta Photos at her Manhattan gallery, prior to the Canal Zone show’s opening. Cariou also testified that he intended in the future to issue artists’ editions of the Photos, which would be offered for sale to collectors.

when CelIe became aware of the Canal Zone exhibition at the Gagosian Gallery, she cancelled the show she and Cariou had discussed. CelIe testified that she decided to cancel the show because she did not want to seem to be capitalizing on Prince’s success and notoriety, and because she did not want to exhibit work which had been “done already” at another gallery.

Defendants assert that Cariou’s Photos are mere compilations of facts concerning Rastafarians and the Jamaican landscape, arranged with minimum creativity in a manner typical of their genre, and that the Photos are therefore not protectable as a matter of law, despite Plaintiff’s extensive testimony about the creative choices he made in taking, processing, developing, and selecting them. Unfortunately for Defendants, 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. See,~, Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 60 {1884}

From the infancy of copyright protection, some opportunity for fair use of copyrighted materials has been thought necessary to fulfill copyright’s very purpose, “[t]o promote the Progress of Science and useful Arts ….” Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 575 (1994) (quoting U.S. Const., Art. I, § 8, cl. 8). At the Constitutional level, while the “Copyright Clause and the First Amendment [are] intuitively in conflict, [they] were drafted to work together to prevent censorship” such that “the balance between the First Amendment and copyright is preserved, in part, by the idea/expression dichotomy and the doctrine of fair use

although “the monopoly created by copyright … rewards the individual author in order to benefit the public[,]” on the other hand “the monopoly protection of intellectual property that impeded referential analysis and the development of new ideas out of old would strangle the creative process.”

Now, looking into the 4 factors that make up fair use:

(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 judge weighs each one:

1. The Purpose and Character of Prince’s Use of the Photos

i. Transformative Use

the fact that a work “recast[s], transform[s], or adapt [s] an original work into a new mode of presentation,” thus making it a “derivative work” under 17 U.S.C. § 101, does not make the work “transformative” in the sense of the first fair use factor.

The cases Defendants cite for the proposition that use of copyrighted materials as “raw ingredients” in the creation of new works is per se fair use do not support their position, and the Court is aware of no precedent holding that such use is fair absent transformative comment on the original. To the contrary, the illustrative fair uses listed in the preamble to § 107 ­ “criticism, comment, news reporting, teaching [ ...], scholarship, [and] research” – all have at their core a focus on the original works or their historical context, and all of the precedent this Court can identify imposes a requirement that the new work in some way comment on, relate to the historical context of, or critically refer back to the original works.

“If an infringement of copyrightable expression could be justified as fair use solely on the basis of the infringer’s claim to a higher or different artistic use . . . there would be no practicable boundary to the fair use defense.” Rogers v. Koons, 960 F.2d at 310. The Court therefore declines Defendants’ invitation to find that appropriation art is per se fair use, regardless of whether or not the new artwork in any way comments on the original works appropriated. Accordingly, Prince’s Paintings are transformative only to the extent that they comment on the Photos; to the extent they merely recast, transform, or adapt the Photos, Prince’s Paintings are instead infringing derivative works.

Prince testified that he doesn’t “really have a message” he attempts to communicate when making art.

ii. Commerciality

As a result of these and other marketing efforts, Gagosian Gallery sold eight of the Canal Zone Paintings for a total of $10,480,000.00, 60% of which went to Prince and 40% of which went to Gagosian Gallery. Seven other Canal Zone Paintings were exchanged for art with an estimated value between $6,000,000.00 and $8,000,000.00. Gagosian Gallery sold $6,784.00 worth of Canal Zone exhibition catalogs.

This Court recognizes the inherent public interest and cultural value of public exhibition of art and of an overall increase in public access to artwork. However, the facts before the Court show that Defendants’ use and exploitation of the Photos was also substantially commercial, especially where the Gagosian Defendants are concerned.

iii. Bad Faith

Prince’s employee contacted the publisher of Yes, Rasta to purchase additional copies of the book, but apparently neither Prince nor his employee ever asked the publisher about licensing or otherwise sought permission to use Yes, Rasta or the Photos contained therein legitimately. Nor did Prince attempt to contact Cariou by email and inquire about usage rights to the Photos, even though Yes, Rasta clearly identified Cariou as the sole copyright holder and even though Cariou’s publicly-accessible website includes an email address at which he may be reached. Under these circumstances, Prince’s bad faith is evident.

Moreover, since the record establishes that the Gagosian Defendants were aware that Prince is an habitual user of other artists’ copyrighted work, without permission, and because the record is equally clear that the Gagosian Defendants neither inquired into whether Prince had obtained permission to use the Photos contained in the Canal Zone Paintings nor ceased their commercial exploitation of the Paintings after receiving Cariou’s cease-and-desist notice, the bad faith of the Gagosian Defendants is equally clear

2. The Nature of the Copyrighted Work

“The statutory articulation of this factor derives from Justice Story’s mention … of the ‘value of the materials used.’ Justice Story’s word choice is more communicative than our statute’s ‘nature of,’ as it suggests that some protected matter is more ‘valued’ under copyright that others. This should not be seen as an invitation to judges to pass on [artistic] quality, but rather to consider whether the protected [work] is of the creative or instructive type that the copyright laws value and seek to foster.”

Here, the Court finds that Cariou’s Photos are highly original and creative artistic works and that they constitute “creative expression for public dissemination” and thus “fall[] within the core of the copyright’s protective purposes.”

3. The Amount and Substantiality of the Portion Used

In a number of his Paintings, Prince appropriated entire Photos, and in the majority of his Paintings, Prince appropriated the central figures depicted in portraits taken by Cariou and published in Yes, Rasta. Those central figures are of overwhelming quality and importance to Cariou’s Photos, going to the very heart of his work.

4. The Effect of the Use Upon the Potential Market for or Value of the Copyrighted Work

Defendants’ protestations that Cariou has not marketed his Photos more aggressively (or, indeed, as aggressively as Prince has marketed his Paintings) are unavailing. As the Second Circuit has previously emphasized, the “potential market” for the copyrighted work and its derivatives must be examined, even if the “author has disavowed any intention to publish them during his lifetime,” given that an author “has the right to change his mind” and is “entitled to protect his opportunity to sell his [works].”

Finally after the judge ruled that they violated Patrick’s copyright and are liable:

That Defendants shall within ten days of the date of this Order deliver up for impounding, destruction, or other disposition, as Plaintiff determines, all infringing copies of the Photographs, including the Paintings and unsold copies of the Canal Zone exhibition book, in their possession, custody, or control and all transparencies, plates, masters, tapes, film negatives, discs, and other articles for making such infringing copies. That Defendants shall notify in writing any current or future owners of the Paintings of whom they are or become aware that the Paintings infringe the copyright in the Photographs, that the Paintings were not lawfully made under the Copyright Act of 1976, and that the Paintings cannot lawfully be displayed under 17 U.S.C. § 109(c)

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There Are 153 Comments On This Article.

  1. Excellent news. Maybe Mr Prince will consider taking his own photographs in future rather than appropriating and profiting from the work of others.

    • @Lottie Davies, yes, this is a good idea. But it’s assuming that the bloke is motivated to compose a decent picture. Due to his normal state of thievery, this is doubtful. This man is a leech, with a capital L.

  2. Prince is a dirty rotten image thief. Gagosian Gallery and Lawrence Gagosian should be deeply ashamed. Upholding theft as art, profiting from the victim’s work — ABSOLUTELY SHAMEFUL. Thank goodness there is a judge who recognizes theft when she sees it.

    Let’s hope that Cariou gets the maximum statutory damages for copyright violations, 28 x $150,000 = $4.2 million. That will send the right message.

    • @Sam, unfortunately, that would mean that Prince and Gagosian still made a very tidy profit from their theft, even after attorneys’ fees.

      • @Matt, I believe that Mr. Cariou in theory should be eligible for all profits the defendants made from his photographs plus statutory damages.

  3. As I read it, the gallery and Prince get to keep their respective shares of the 16 or 18 million dollars in cash and art they got in exchange for the Prince paintings.

    The moral of this story is to ignore copyright, ignore cease-and-desist, sell quick, hire a lawyer and go to court. Then close up shop and retire to Costa Rica.

  4. FANTASTIC NEWS! A VICTORY! Oddly, I was JUST researching today any follow up news. I had wondered if they quietly had settled out of court with a gag order in place, and could possibly be the reason there were no recent updates. I appreciate your blogpost and outcome of the Prince/Cariou lawsuit. KEEP THEM COMING!

  5. In his wildest dreams I don’t think Larry Gagosian could have come up with a better plan to increase the value and cachet of those paintings.

  6. More to come …

    “It is further ORDERED: … That the Parties shall appear before this Court on May 6, 2011 at 11:00am for a status conference regarding damages, profits, and Plaintiff’s costs and reasonable attorney’s fees.”

  7. If only Mr.Prince’s work was noteworthy and original(sorry about the word choice) but it is actually extraordinarily mediocre….almost embarrassingly so…I mean really, you cut out an electric guitar and stuck it in his hands..? the only way this might work is as a statement on how Jamaicans are perceived in pop culture and as a comment on that little bit of mediocrity, other than that it is just that: A racist, lazy art work… crap is crap, and you know when you see it, but Mr.Prince is a far better businessman and charlatan than he ever will be an artist…. What is also amazing is how the art world seems no better, to be a whiling victim and accomplice is also a crime…..just one more reason to be a cynic and doubt everyone and everything you see and meet….

  8. Shame on the idiots who buy his crap too. Can’t find a better use for all that money?! How about buying from the original artist rather than the thief? Pay for the real art, not the crap copy. It’s crap no matter what price people have been suckered into paying for it. Plagiarism and copyright infringement produces unoriginal crap.

    And who ever thought this should be legal? ‘Don’t Steal’ is one of those fundamental rules you should learn early in life. And if you don’t learn it by the time you’re an adult, then the copyright law should give you a clue to make your own damn photographs. And if you say, “F__k the copyright law, I’m Richard Prince!”, then the copyright law should give you a heavy smack in the bank account.

  9. This should be made into a movie! You could use a Shakespearian theme. The ending is where Prince has his meeting with a guillotine or is run through by a sharp handed judge.

    I wonder what the award will be since the thief profited handsomely. I hope it is equal to the numbers quoted.

    I love hearing how the unjust get their just dessert of humble pie.

    Thanks for getting this out today Rob!

  10. I photographed the Marlboro mainline campaign for Leo Burnett from 1988 until 2008. A few years ago a friend noticed that one of my Marlboro snow shots was on Prince’s website. I was flabbergasted that he could steal the rights to this image (it was virtually unchanged), angry I was but the issue for me was that PM owned the copyright as I had sold it to them (and certainly not for millions, that’s for sure, far far from it).

    In any event there was no recourse for me other than becoming pissed off that some guy could go out and simply steal and sell my idea (or the ideas of others), my creativity, not his, for millions. It also amuses me that we live in a world where this kind of activity, the “derivative” art issue, is seen as some form of a meta-cognitive creativity. One only has to look at the photographic work that Prince actually does and you quickly realize what a lightweight he really is (of course, he is NOT a lightweight at making money….).

    As Andy Anderson noted, ‘at least there is some sanity’.. or something to this effect. I hope he is right, and hopefully these kinds of judgements will help the creative world – that is those of us who actually muse about new ideas and imagery and do not simply just find something that someone else has done, copy it and sell it. Unfortunately, Prince’s stolen millions (apparently he will keep the monies) will surely serve him well in the upcoming appeals. And, I suspect that this judgement will also just be another feather in his cap… the art world for some reason thrives on this form of controversy AND apparently are willing to pay for it.

    To be continued…..

    • @William Thompson,

      So sorry to hear about your images being ripped off by this POS.

      Your unfortunate situation is a good example for the rest of us of why it’s better to offer clients an exclusive, unlimited, global license in perpetuity but maintaining your copyright, rather than doing work-for-hire. It’s essentially the same for the client, but it allows you to pursue infringement.

    • @William Thompson:

      Let me get this straight. You make a decent living shilling for a company that knowingly makes a product which kills millions of people a year. You do this starting in 1988, when the dangers of cigarette smoking were perfectly well known. You also give them the copyright to your work. Someone else comes along, and turns your murderous photography into art — maybe good art, maybe bad art, but in any case it isn’t advertising cancer sticks.

      And you think *you* have the moral high ground?

      You can’t be serious….

      • @Jackdaw, William Thompson is a photographer photographing the American West and Cowboys for a client. He is not condoning smoking or cigarettes. Cigarettes are a legal product, and all side-effects from smoking are well known and have been for decades. Your choice. They don’t print warnings on their packages, but a heads up, fast food hamburgers loaded with cheese and bacon are bad for you too. Again, your choice….

        • @susan, This is absurd: sure, fast food is bad for you; so is liquor if you consume it in high quantities. But cigarettes are clearly an order of magnitude more dangerous — “the only product”, as they say “which, when used as directed, kills the consumer”.

          Sure, cigarettes are legal, and each individual can choose whether to smoke or not but one can hardly dispute that it’s one of the most evil industries in America. (And let’s note that fast food isn’t addictive.) To say that Thompson was simply a photographer working for client is not so different than saying that Leni Riefenstahl was just working for a client, and bore no responsibility for that client’s actions. (And before anybody jumps on me, I’m NOT doing the standard blog comment thing of comparing Thompson and Philip Morris to Nazis. I’m merely pointing out that ‘I was just doing a job for someone’ is no excuse. Nor am I saying that Thompson should be forbidden from doing that kind of work: I merely wanted to point out that he was far more ethically compromised than some artist who — when he first started doing this work, anyway — was young, poor, unknown, and working out of an aesthetic altruism that’s far beyond what a hack like Thompson can even comprehend.)

          • @Jackdaw, Even cars create cancerous substances and I think a lot more than sigarettes. Should every photographers that takes pictures to advertise cars feel guilty because if you buy and use a car you’re poisoning the air?
            The discussion here is not about how dangerous sigarettes are, but about a man that makes millions out of stealing other people’s works and pass it off as art!

  11. That ruling should have been applied many years ago for Sam Abell’s original Marlboro shot.. it’s hard to believe someone can consider anybody an ‘artist’ who simply re-photographs a poster; have I missed something about the art world ?

    • @Jon, “it’s hard to believe someone can consider anybody an ‘artist’ who simply re-photographs a poster; have I missed something about the art world ?”

      If this is hard to believe for you then you have clearly missed something about the art world. ;-)

      • @Sam.,
        ‘If one assumes that the infringement is part of the work (as vandalization is part of a street artist’s work)’

        gahh! ..now I get it, I’m just not thinking stupidly enough, right? in order to think like an artist I should consider being a vandal at the same time..

        • @Jon, @Sam, @William Thompson

          @But can we step back for a moment and consider that the damage done to the public by advertisers might outshine the “damage” an artist might do to a commercial photographer by appropriating his or her imagery? The whole point of Marlboro cowboy imagery is to seduce the viewer into tobacco addiction. Prince is doing something far more benign–and possibly productive by taking aim at that industry. That is not to say that Prince is beyond criticism, but how can we use the Marlboro campaign as a bastion of morality? Surely there is a better example.

          • @lily, no, actually, we can’t, because “linkage” is the last refuge of the scoundrel. When you consider the sort of people who typically use “but he’s worse than me” arguments, you immediately become even MORE suspicious of anyone who tries to make one. Marlboro’s sale of lawful and highly regulated products, whatever you may think of it, has zip, zero, zilch to do with Prince’s thievery and contempt for other artists.

            • @MarcW, Amen! Marc. Good grief. I guess for William, Lily would be for the theft of his work. Yeah, that is real ethics ain’t it?

              (I try so hard to have peaceful and kind thoughts.)

              • @Timothy F, did you see my statement above that says “That is not to say that Prince is beyond criticism, but how can we use the Marlboro campaign as a bastion of morality? Surely there is a better example.” I am not condoning what Prince does, but if we are discussing ethics, why would we bring up Marlboro?

                • @lily, That is what Rob did provide, not just an example, but actual justice that William is denied.

            • @MarcW,
              While I don’t fully agree with lily’s argument I do think there’s a strong case to be made for fair use in regards to the Marlboro pictures. The myth of the Marlboro man has become a cultural icon and it is quite easy to view Prince’s cowboy work as a comment on that. Secondly, the cowboy photos were part of an advertising campaign and the photographers gave up all the rights to them so the potential market for them was inexistant.
              I’m no legal expert but from what I know about fair use I think that in the case of the Cowboy pictures Price would have a better case than he did with the Rasta photos.

              • @Sam, Prince is welcome to go out and take pictures of cowboys his own self.

                As far as the copyright issue, that’s exactly why he never got in trouble for that – because Marlboro owns the copyrights, and Marlboro knows it’s not popular in the courts and didn’t bother to sue him *even though they had him dead to rights.* The fact that the *photographer* didn’t own them doesn’t mean that *somebody* didn’t. And his usage definitely could be argued to have an effect on the market for Marlboro’s rights. Maybe they’d have won, maybe they wouldn’t. But *I* would have taken the case.

                In some ways he would have had a better case with regard to the Marlboro pics, and in some ways worse. I think overall I agree with your assessment as to the case which was relatively stronger, but I disagree that his case with regard to either was particularly strong at all.

                • @MarcW,
                  Yeah, but his own cowboy pictures wouldn’t have been Marlboro ads. It’s a bit like if an artist takes a Coca Cola label, blows it up in size and prints it on a canvas. Sure one could say he’s stealing some poor typographer’s work and that he should create his own font but we all know that wouldn’t be the same thing. While this particular example would make for a very lame artwork, references to popular culture such as this can be found in art all the time.
                  We do have to ask ourselves, if we get bombarded by advertising with certain imagery to the point that it almost burns itself into our collective consciousness (bit of a misuse of the term, I admit), why shouldn’t an artist be allowed to use it in order to communicate something to others? I knew the Marlboro Man way before I was even old enough to know how to spell “Marlboro” and Wikipedia shows that the campaign ran for close to 50 years so I think it’s safe to say that it has become part of popular culture. The same can definitely not be said about Cariou’s Rasta pictures.

                  Like I said, I’m not a legal expert but I have to say that if Marlboro had sued Prince for his use of the cowboy pictures I would’ve sided with Prince on the matter. As for the photographers who worked on the campaign, I do understand their frustration. They feel like someone else is making money off their hard work and their photographs. In one way that’s certainly true but I think what we have to understand is that he’s actually making money off the myth those photographs convey.

                  Let’s remember, Prince started doing the cowboy photos in the late 70s which, I suppose (I wasn’t alive back then), was a time when that overload of color photographs in advertising must’ve felt much different than nowadays.
                  As I said, my feelings on Prince are mixed but while I think his Canal Zone series is crap, I do think his earlier work has some merit.

            • @MarcW, Finally, a voice of reason. We all need to be responsible for our own choices.

  12. I think this case is a bit different than the Marlboro shots. With the cowboy photos Prince did a work on advertising photography and arguably infringed on the copyright that belonged to a big cigarette company. If one assumes that the infringement is part of the work (as vandalization is part of a street artist’s work) then one could say it was fair game as he took the risk of being sued by a big corporation with much deeper pockets than his.

    In the case of the Rasta pictures I really don’t understand why Prince did not approach Cariou in advance and offer him money to use the pictures. He was clearly inspired by the work or otherwise he wouldn’t have used so much of it. It would’ve been easy for him to offer Cariou a million dollars to use his work and Cariou would most likely have accepted the offer as it surely is more money than he could ever make if he sold the pictures himself.

    • @Sam, am I reading your comment correctly in that you seem to say that it’s okay to steal so long as you steal from big rich companies who could do something about it and if they don’t, then you’re cool?

      • @MarcW,
        I’m not saying it’s cool but it’s a bit like going up to a guy that’s twice your size and insult him. If you’re willing to deal with the consequences then go ahead. But doing the same to a guy that’s half your size is definitely not cool.

        Richard Prince is an appropriation artist an appropriation is, of course, just another word for stealing. What I’m saying is that we shouldn’t be surprised if he does exactly that. Just like we shouldn’t be surprised if a street artist sprays color on walls in the street. But even if Prince doesn’t believe in copyright I think he should know better than to infringe on a struggling photographer’s work without compensating him. It’s like if you do not believe in private property there’s still a difference between stealing an ice cream from the super market and stealing it from a little kid.

        • @Sam, Speaking of morals, “like if you do not believe in private property”..? ok, it’s a world of ‘free-for-all’; what standard are you using ? Stealing from a supermarket or from a kid is STILL stealing, which means you’re a thief, full stop..

          • @Jon,
            Sure. The point is that even among thieves there should be a minimum of pride.

            By the way, even though I used this analogy, I don’t think copyright infringement is the same as stealing and I don’t think it does anyone much good if we keep equating the two. Copyright infringement, as seen in this court’s ruling, is much more complex and if we keep dumbing it down for the masses and call it stealing people will be less informed because of it.

  13. I try to get model releases from any individual I photograph, so it would be interesting if someone could claim defamation of character if their image is used by a third entity without permissions by (hypothetically) someone like Prince. It is an issue with print, they want model releases when submitting photographs, unless it is categorized as journalistic news. It would be interesting to hear a legal clarification on where the legal lines are between not just the photographers rights, but the individuals who’s images are altered in such a way. My model releases give me permission to “alter” images, which is there to protect me from this legal area….regardless of whether I do alter or not. But a third party…..hmmmm. A plethora of questions…..

      • @Erica Chadwick,
        No model release for photographic fine art work for profit? Is it subject matter dependent? (i.e. publicity rights for celebs vs. general public)

        I understand the editorial/fair use formula (though that’s now being challenged by the likes of Shirley Jones v Corbis) but always felt imagery shot with a clear expectation of privacy required a release if profiting off the person’s image.

        Not challenging you, just genuinely curious to the legal precedent.

        I was under the impression that it was always prudent to retain a release, at the very least to avoid paying legal fees in a dispute.

        Fine art gets a pass? Has that been defended in court?

        Thanks in advance,

        Wm.

        • @William Anthony, good points. One lawyer I spoke with some time back said there are not any clear answers with regard to fine art, and gallery sales. As Debra said, better safe than sorry. Always get one.

          • @Paul,
            I always do. I was just surprised at the notion that fine art was somehow legally exempt from retaining releases. I am not aware of any precedent and was wondering if Ms. Chadwick could point me to one.

            This case of Richard Prince, the Shirley Jones complaint, Shepard Fairey, the Tod Brody/Vampire Weekend dispute and others make this a very active copyright era. A lot to sort through.

            • @William Anthony, yes, agree with you. And yes, I assumed you got releases all of the time. Miss Chadwick’s “advice” was beyond a broad generalization–it was ridiculous. Let’s hope that new photographers will question what she said.

          • @Donnor Party, no. I was just curious if she knew about some law and precedent that I did not.

            • @everyone –
              How can this lengthy discussion about the ethics of these artworks exclude the issue that both Prince and Cariou may be potentially exploiting their impoverished subjects? Sure he gains their trust and friendship, but I wonder if Cariou gives any sort of financial compensation to the gypsies or rastas that he captures? Maybe he does… do you know for sure? I would like to see this issue come up before we continue whining about how photojournalism is “exploited” by approrpiation artists, when oftentimes the subjects themselves are exploited, or overly-exoticized, romanticized and fetishized.

              • @lily, Valid questions, and the answers are in a grey area. Agree with you—nearly all photojournalism contains elements of exploiting the subject, whether the photographer admits it or not. Even if the subject enjoyed the experience, they are still being exploited. Especially in street photography. Some subjects are satisfied with a “payment” of a good meal or a print, rather than money. I’m guessing that more than a few photographers never reveal what usage purposes they have in mind during the actual shoot, for fear that the opportunity would be lost, if they were really candid.

              • @lily When I photograph Rastas out in the field (up in the hills – Caribbean – away from tourism) there is a clear understanding of what my intentions are. But I purchase their arts, or do offer a small recompense (artist here, not a cash cow), so I do what I can. My premise is that I want to capture their image and information for fine art as well as historical documentation (culture) purposes, with a possible art exhibition, book, etc. in the future. I make no promises that any of these things will happen, and they do sign releases. I never EVER push a release. Only what they are comfortable with, and ALWAYS say it’s no problem if you don’t want to participate. I have had one decline to be photographed. Most are surprised I made such a long journey to the middle of nowhere to seek them out. I usually hear about particular individuals of interest before I set out to find them. I get worried when I hear broadsweeping words like “exploitation.” Some people want to be part of something larger than themselves…..especially in the arts.

              • @lily, because it has NOTHING TO DO WITH ANYTHING. If, under Jamaican law, Cariou misappropriated somebody’s likeness, then throw the book at him. Otherwise, it’s not just mostly irrelevant, it’s totally irrelevant.

                Why do you keep coming up with reasons why Cariou is a bad guy and then thinking that those in any way exonerate Prince? If you insist that only those with pure souls and never-soiled hands may ever seek any sort of remedy, we might as well just close down the court system, because we’re all sinners here. Of course, that could be what you want, but if it is, please just say so.

                • @MarcW, I see what you’re saying. To clarify, I am not trying to exonerate Prince. I am not a fan of Prince’s work for many reasons. And if Cariou is exploiting his subjects (which he may or may not be – note I asked for information about his practice and am genuinely curious) then Prince is doubly guilty of exploiting those subjects (and of course exploiting Cariou’s work). It is maddening to have one’s work stolen, and I’m glad Cariou won the suit. But we are on a message board and not in court, so why can’t we discuss the ethics of Cariou’s practice while we’re at it?
                  I understand that your comments are focused on clarifying legal issues. But the tone of much of this discussion seems to surround issues of right and wrong, not just legal arguments. I don’t think that the law is 100% fair, and I happen to believe that there are often actions that are wrong but are still legal (which is not to say that every ethical issue should be brought to the courts!)
                  I prefer to arrive at ethical judgements after weighing all the angles.
                  I am a fan of photojournalism that raises awareness of social issues, and I am also a fan of photographs that do not engage social issues. But sometimes there is a fine line between highlighting suffering and fetishizing suffering.
                  I personally hope that Gagosian, Prince and Cariou donate some of their millions to Jamaica, which has provided them with inspiration. (And of course the real economic damage to that country comes from the IMF/World Bank… but you’re right Marc, that these linkage arguments are a slippery slope, and now I’m really getting off-topic)

    • @Debra Frieden, the Right of Publicity is, of course, subject to the First Amendment in the United States. However, it is a state-controlled right, not a Federal right, and there is no black-letter law that says just because you call something “fine art” or “editorial” that you are automatically off the hook.

      My own state of Illinois (in which I am licensed to practice law, although this is not legal advice and you should always consult a lawyer about your specific situation before making legal decisions) has one of the strictest RoP statutes in the country, 765 ILCS 1075, the Illinois Right of Publicity Act. If you’d like to read it, here’s a link to the statute:

      http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=2241&ChapterID=62

      It specifically anticipates arguments to fine art/editorial usage and sets forth what is and isn’t allowed. (The Nussenzweig decision cited above would have come down the other way in Illinois, for instance.) It has not been tested at high Federal Court appeals levels let alone the SCOTUS, but there *is* SCOTUS precedent on the matter which makes me think it has a pretty good shot at standing up to scrutiny.

      • @MarcW, Thank you for sharing Marc. We have talked on these forums before. Please add me to your fb at Debra Hill Frieden if you would like. We can keep up with each others works there on a more regular basis. Debra

  14. I had a copy of the Yes, Rasta book (I lost it, hope I can get my hands on an other copy) and in it Cariou describes how much time and effort it took to befriend his subjects and get them to pose for him. Although you can never say for sure I highly doubt that Cariou would have sold the rights to Prince for any reasonable amount.
    Fully agree with the comments on the level of artistry of Prince’s works by the way.

  15. The paragraph that struck me the most:

    “Defendants assert that Cariou’s Photos are mere compilations of facts concerning Rastafarians and the Jamaican landscape, arranged with minimum creativity in a manner typical of their genre, and that the Photos are therefore not protectable as a matter of law”

    If not a legal tactic, that’s a particularly arrogant and insulting expression of how the art world views “documentary” photography. Richard Prince works are creative (supposedly), but Cariou’s are not ? Unfortunately this view seems quite widespread (not in such an extreme form). See for instance Paul Graham’s essay.

    • @QT Luong,

      It’s purely a legal tactic. The Defendants’ lawyers may have told the Defendants to lie down on this case and pay-up. You can insure for copyright infringement claims. The client calls the shots in the end, though, and every client believes that their lawyers will get them out on a technicality. That usually leaves the lawyers with having to rely on an argument that barely passes the laugh test to appease the client. Another favorite defense is ‘fraud on the Copyright Office’ because you checked the wrong box somewhere.

      There’s always the possibility that they lawyers just wanted to keep generating fees, but I would have no way of knowing that.

      • @Jim McCoy, in defense of attorneys*, your statements are a little contradictory. “It’s purely a legal tactic” implies that it’s somehow something the lawyers “made” Prince say. But then you say they did it because he insisted they defend him against a charge which was true.

        Ethical attorneys don’t just shove things in front of their clients and say, “Sign here.” We at the very least do our sawdust best to explain to them (I often describe my job as “translating between legalese, businessese, and techie”) what the document says. Those court filings are not the opinions and assertations of Prince’s attorneys, they’re the opinions and assertations of PRINCE, simply made in a format required by the courts and the law with the assistance of his attorneys. If he didn’t believe what he said in those pleadings, then he’s a perjurer.

        It’s not fair to excuse something as “only a legal tactic.” If you said it and didn’t mean it, you’re dishonest, period. It makes no difference that your attorneys told you that was the only way to defend yourself: if the only way to defend yourself is to lie, then if you defend yourself you’re a liar.

        *Remember that it’s just 90% of attorneys who give the rest of us a bad name.

        • @MarcW, I agree with most of what you said, but let’s be honest: law is no longer a profession, it’s a business. If the Defendants’ attorney’s sit down and give it to them straight- as they should- they are going to just take the elevator to the next floor and find an attorney that is willing to provide a defense.

          I once litigated a copyright case where the circumstances were basically the same- the defendants were dead in the water after depositions and discovery. The big NY firm insisted on trying the case and we hammered them. The did it for the money, plain and simple- and got fired at the end.

          • @Jim McCoy, plenty of blame to go around. Lots of lawyers would push a defense (or a claim) that I would decline to – but I have that luxury because of the kind of work I do. That doesn’t mean they’re behaving unethically. And if your philosophy is, “so long as it doesn’t violate the canons and the client is willing to pay, I’ll do it,” then while I disagree with you I would not disparage you for it. That’s law-as-business. Not my cup of tea, and obviously it has pitfalls for both sides: a stubborn person with a lawyer of that kind can litigate themselves out of an AWFUL lot of money when a more realistic person or a less accommodating lawyer might’ve saved it. But as you say, there will always be accommodating lawyers, so if they were straight with Prince, he is still the bad guy of this piece.

            • @MarcW, Thanks for your contributions. If possible, could you jump down to post # 27, and address that issue.

  16. Gagosian Gallery is a cog in this factory of stealing images too… Steal that guys Mercedes and I bet you’ll never see the light of day again…

    BS

  17. only looking

    hilarious title, “YES RASTA” – aka “AFFIRMATIVE EXOTICISATION”. When culture spews forth such remarkable and troubling artifacts, what can you do?

  18. I usually glaze over when I read court papers but I read every word of this one. Thanks for sharing. It’s really incredible that this even happened. Methinks he should know better.

  19. Wonder how the copyright suit David LaChapelle vs. Rihanna will end. LaChapelle claiming that Rihanna used his concept of photographs in her video.

    • @Thomas (PD-JKT), yeah, but it seems like Cariou had a stronger leg to stand on. I thought that concepts were in a murky, grey area, and sometimes escape the rigor of Copyright definition.

  20. A few years ago I was in NY & popped into the Guggenheim and what was on but a Richard Prince retrospective. I rolled my eyes but went and had a look anyway. One of the first things I saw was a notice forbidding the pieces from being photographed. I didn’t think I could get more annoyed by Prince’s work but that tipped me over the edge. I took a few anyway just on principle.

    Glad he’s got his comeuppance.

  21. Donnor Party

    Cariou should thank Prince. Really. Yes Rasta was destined to serve as a door stop at the remainer man’s office, collecting dust and taking up space. Now Cariou can pay some bills, actually sell some books, fund projects. We should all be so lucky as to OWN a copyright that Prince steals and Gagosian sells. Vive le machine!

    • Donnor Party

      @Donnor Party, This was tongue in cheek, by the way, although there is some truth in it.

      • @Donnor Party, Yeahhh, come on baby, let’s do the twist. Not directed to you Party Man.

    • @Donnor Party, we published the book. It did not sell well after its release in 2000, and most of the print run was sold off at a deep discount in 2003 (you can still find copies at de Slegte in Holland and Belgium). Patrick made no money off the book or the resultant attention from this. He is a modern-day Holden Caulfield who resides in France.

  22. David Goldman

    I thought I was alone in despising this hack. I want a full refund from the Guggenheim for not even knowing what I was paying for when I saw his show there a few years ago.

  23. “Gagosian Gallery sold eight of the Canal Zone Paintings for a total of $10,480,000.00″

    Seriously? That’s not a misprint???

    • Donnor Party

      @jason grow, Every working artist I know, from the deep recesses of BedSty to the hills of Silver Lake, choke when they see that number. I mean, smashing things mad. Its not the obsene amount, its that the work is shitty to midling. If it were, say, Nancy Kienholz, Kiki Smith, Sally Mann, Gerhardt Richter, I’d be surprised at the total, but I respect them all as artsists. I think some protests in front of Gagosian, followed by Gagosian and Prince fleeing the country, is in order.

      • @Donnor Party,

        Funny: every artist *I* know thinks Prince is one of the best artists of his generation. He’s certainly one of the most influential, and he’s practically idolized by the artist’s twenty or thirty years younger than him.

        As for the money — who cares? It’s one rich person giving money to another rich person. Art is often expensive, but its price is inconsequential to the average viewer, who’s content to look at things in museums and galleries (and gallery-going, let’s not forget, is free). I’d rather Prince had the dough than the hedge fund manager who bought the work from him.

        • @Jackdaw, In other words you don,t mind if the art world is as corrupt as wall street ,and it is look at what people pay for bad art while other people wonder how to pay their rent .

          • @Richard, Well, for the record, I think Prince is a very good artist, but anyway, let’s break your question down.

            Do I think hedge fund managers, and rich people in general, should be taxed more? Yup.

            Do I think rich people should be taxed to the point where they think twice about paying $2,000,000 for a new painting? Yup.

            Do I think the highest-priced artists could get by perfectly well, and make the same work, if they were paid much less money for it? Yup.

            Do I think rich people are going to voluntarily give their money away to poor people rather than buy art with it? — Well, some do, and some do both, but for the most part this is not something I would count on.

            Is the art world as corrupt as Wall Street? Nope, not at all. Artists make things: people buy them, at whatever price they can agree on. For the most part, the process is transparent: Wall Street isn’t. Moreover, artists don’t get their money from the pockets of working people (except indirectly — that is, in the sense that bankers do, and spend it on art — which is a problem, but not one that’s going to be solved by making art less expensive).

            Do I think artists ‘deserve’ that kind of money? (And lets bear in mind that most artists are just scraping by, but I don’t mind focusing on the very successful ones for the purposes of this discussion.) Not really, no — but then, neither do actors, directors, pop stars, and athletes, most of whom make far more money with far less talent (well, maybe the athletes have the talent), and most of whom do far more to degrade our culture.

            All I’m saying is, the way things stand now, if someone’s going to get that money, and it’s not going to be the poor, or even the working or middle classes, I’d rather it was artists than bankers, lawyers, actors in crappy TV shows and even worse movies, etc. To my mind, Prince (or if you don’t like his work, any other contemporary artist in the same price range) is worth far more to our culture and civilization than, say, Simon Cowell, or Charlie Sheen, or Barry Bonds (talk about corrupt), not to mention high-priced lawyers, Wall Streeters, or Lady Gaga — all of whom make much, much more money.

            • @Jackdaw,This paticular (and I use the word while laughing)work of art is not a work of art but rather a stolen image (I would not even be commenting on this even if it was not to my taste if it were not stolen) ,have you looked at the photos the guitar image, it is not up to par with a six year old on photoshop and the second piece is just sepia toned , nothing but a insult to the originals and both are not worth anything to our culture (whats left of it once the new rulers take it apart )and I hope the original artist gets the money ,it really is a stretch to call that art ,I have seen better mistakes on copy machines once again I hope the original artist gets the money and the people who bought this crap give their money (since they have nothing better to do with it to someone with talent).And yes big art is as corrupt as the people who support the latest darling of the scene.

              • @Richard,

                It really doesn’t matter whether you like the art or not, or even if you think it’s art at all. No one cares about this kind of debate. I could argue that the work wasn’t ‘stolen’, since Prince never disguises what he does. But that’s beside the point.

                Your original point, such as it was, was that the money would be better spent elsewhere. I agree, but that’s not going to happen.

                As for what a six year old could do with Photoshop, that’s true of most 20th century art: “Robert Ryman, my kid could have done that”, etc. That’s an old and tedious argument, and not worth responding to. As I said, if you don’t like Prince’s work, if you think it’s garbage, fine. I don’t mind, and God knows Prince doesn’t.

                But there’s no such thing as a ‘stolen’ image, and certainly Prince doesn’t pretend that the image is his: there’s no deception involved here.

                As for “big art” being “corrupt”, I think you’re letting your cynicism get the better of you. Prince worked for decades in relative obscurity, without any real attention, let alone money, and had no reason to believe he would ever get either. He made his work, as any artist does, because he believed in it. You may not believe in it, and again that’s fine, but if you think there was a conspiracy at work, or that his success was a given, you’re simply wrong. He took risks, including the disapprobation of people like you. As it happened, he succeeded, because people believed he was doing something interesting. So be it. But you sound like one of those wackos who are convinced that Obama is not an American citizen. There are no conspiracies: learn to live with the idea that it’s a big world, and people act according to their genuine beliefs, even if you don’t share them.

                By the way, you say that the original image in not “worth anything”, but you hope that “the original artist gets the money”. Why?

                • @Jackdaw, What I did say is that the original work is worth something but the stolen art sucked lets get that straight and that is my main point . Also I voted for Obama ,I am an artist and support the arts and have for sixty years , I hate the fanatic repressive teathuglicans who are trying to destroy the arts and the I stood up for equal rights and for opposing an illegal and ignoble war in Vietnam and George W. and the whole group of revisionist that ran the show(and also served my country )if this is Wacko so be it. What is your claim to fame trying to destroy the copyright law.My work has been hung in the Hecksher and well reviewed by Margaret Moorman in New York Newsday hung as a solo display for an entire New York County blah blah so what ,most of my closest friends are teachers and professors of art including my partner .Nowhere in my post do I mention conspiracies ,you did. I did say that this particular work by Prince is not original ,stolen and not worth the paper it is printed on,I am not commenting on his other work which might be great original art I don’t know it, but the original work by Cariou is worth something and belongs to the artist who created it ,if you misunderstood my post or my explanation was not clear about this it should be now, It is Cariou who created owns and deserves the credit and money for his well made original images ,also if you have read the comments on this page you will see there are people that wish worse things on Prince than yours truly,including the courts for a change, you are one of the very few of all the comments here that defend this work and might truly be the wacko .We all borrow ideas and inspiration from others and always have ,but this was a blatant rip off and a bad piece of art from Prince, and where do you think the money made probably goes back to a bank account and investors and hedge fund managers you would rather not have it go to.

                  • @Richard,

                    Well you’re right on one point: when you said “have you looked at the photos the guitar image, it is not up to par with a six year old on photoshop and the second piece is just sepia toned ,nothing but a insult to the originals and both are not worth anything to our culture” I assumed the word “both” referred — as, in English, it usually does — to the two most immediate preceding nouns, in this case “insult” and “originals”. Maybe if you took some time to write and punctuate more clearly these kinds of misunderstandings wouldn’t occur…

                    The rest of your response, consisting, as it does, mostly of barely literate boasting, doesn’t merit a response. — Oh, except for the part about me being the only person defending Prince, to which I would reply, “So what?” I don’t allow my opinions to be determined by the number of people who agree with me, whether it’s a majority or a minority. I do, on the other hand, respond to calm and persuasive reasoning, but you’ve provided none of that.

                    What I find most striking, about your posts here and many others, is the degree of vitriol, the escalating, mob-like hatred, the name-calling and repetition of epithets, and the almost complete absence of any willingness to engage the issues at any level more dignified than sheer resentment.

                    • @Jackdaw, Punctuation ,what a stupid way to dance around the real meat of the matter,oh mighty professor of english.I actually went to the link to look at the rest of the show to see if I and the rest of the mob were wrong , the whole thing was infantile tripe is that clear enough can you understand that with my lousy punctuation. As for vitriol you are the one that called me a wacko and this post assumes everyone else here is a mob and not up to your standards ,poor baby ,grow up and face the fact the rephotographer as he refers to himself is a sham.

                    • @Jackdaw, P.S. by the way oh great one my barely litrate boasting which does not merit your response is my response to you accusing me of being a birther and hating Obama and showing I have some training in art ,which you clearly need ,oh thats right your a professor of english sorry,in any case I assumed your next diatribe would be to question my backround so i gave it to you it did nothing for my ego and was not boasting . If I might ask what is your backaround in critcal thing or art for that matter ,I really could care less about all this bull you are bringing up the simple fact is the work speaks for itself ,you like it and that fine I don’t and think it is plagiarism .

                    • @Richard, Before you Question my spelling(foregone conclusion) I did spell backround wrong (backaround) when I accidently hit a letter a (or did I it kind of sounds like pompous ass )but these things happen all the time when one has M.S. so I admit to my lousy typing,but could go on with these posts forever but it is getting to to be quite the the snore.

        • Donnor Party

          @Jackdaw, Prince is a fraud, like Dash Snow was a fraud. He is (one of) the art world’s real capitalists, and not done well like Andy did it. The kids who like Prince like money, being the smelliest guy in the VIP room.

          • @Donnor Party,

            “Prince is a fraud.”
            “No he’s not.”
            “Yes, he is.”
            “Is not.”
            “Is too.”

            Yeah, this is useful.

            I’d hoped there was some sort of useful discussion we could have regardless of our respective views on the merits of Prince’s work. Apparently, I was wrong.

            • Donnor Party

              @Jackdaw, no offense, seriously, but thes issues are too nuanced and complicated to discuss via text, its a limitation of the medium and the diffiulty, for me anyway, to take a discussion board seriously, or rather to invest the time in a truly thoughtful response worthy of a discussion. Others are, I just cannot manage it in this format.

  24. L'Guardian

    “Transforming a picture of President Obama into a poster does not qualify nor does commenting on commercial advertising by taking close up shots of cowboys in cigarette advertising images.”

    Who said this?
    Fact or opinion?

  25. I think ” A Photo Editor ” should change its name to

    ” Life’s a bitch if you’re a photographer ”

    …. seems to be the general theme around here 99% of the time !

    Yowzers !

  26. Good news all round really. Finally common sense prevails. It was most likely laziness and arrogance on Prince’s part. Because he had ‘appropriated’ works before he thought he could get away with it. I expect this has been and will be a hard lesson. The existing copyright laws aren’t the problem. People understanding them seems to be.

  27. Patrick Cariou went there and did the work. Richard Prince bought a book and copied it. I would love to be able to claim the words “Once more unto the breach, dear friends, once more.” However, I cannot because W. Shakespeare wrote them first. I’ll just have to leave home and look for something else to say.

    • @Chris Floyd,

      Actually, Shakespeare’s works are public domain: you can do anything you want with them.

  28. SSSSSSSSSMACK! It is about time!

    The case law on this sort of nonsense should have been settled a decade ago.

  29. Wow, man, what a lot of hate. Look, I’m a photographer and not happy if my work turns up in an uncredited, unremunerated context, but I’d prefer to err on the side of freedom here. I find in this a striking parallel to the erosion of our civil rights in the name of protection. Guys, bad shit is going to happen, and people are going to steal your crap. It happens. Stifling artistic expression is not the way to combat it. I don’t want lawyers deciding what is and what is not art any more than I want them deciding whether or not my library records should be searched to determine whether I’m a terrorist.

    • @D Traver Adolphus, Yeah until it is your work no one contacts you for permission and some no talent hack makes 10,000,000,000 dollars destroying it,than you will say to yourself wow man.

      • @Richard, I’m not saying I don’t understand the anger–I can go find a hundred copies of my stuff out there without my name on it without breaking a sweat, and of course it pisses me off. What I’m saying with my crappy metaphor is that in the same way we suffer for liberty, we also suffer for art.

        • @D Traver Adolphus, Well right now we are suffering for liberty by people who promised it and now are taking it away ,and I am not picking on you personally but did you look at those photos the one with the guitar was really bad and an insult to the original,the other just sepia toned , I give stuff away all the time and it gives me a better feeling than going to the art world to try to become their latest darling which as you can see here is becoming corrupt, only the uber rich(read top 2%) would pay millions of dollars for stolen bad art . One more thing if you are uploading images online and seeing your work out there and it makes you mad ,watermark or initial with copyright mark ,it’s not bulletproof but it is your work and you don,t always have to suffer life is hard enough.

  30. Gosh, it seems so simple. I am not unique in my opinion, but I have been a working photographer for fifty years, have a large archive, and my photographs are in the collections of major museums. These images are my life’s work, and I hold the copyright. NO ONE has the right to reproduce my images without my permission. All this quite clear to me.

    Aside from all the opinions and arguments, it seems only fair that one’s creative work should be honored and that if anyone else wants to use it for their creative work, they should get permission and give credit to the original image maker. To me appropriation is a category that should be considered a ‘collaboration.’ Like most working photographers I do not command the prices that Prince does now. I scrape by and barely survive if at all on my print sales.

    One way I make money for my survival is to sell prints or license my work for use in films and in publications. (I have not yet been asked by another artist if my work could be appropriated.) I need this income. Two years ago Richard Prince bought one of my photos from a gallery show. (I hope he is not planning to use it for his ‘alterations’ without my permission.) I would say yes to use by another artist normally, but I would need to be compensated in some manner. In a sense the issue is one of ‘good manners’ and clearly of ethics.

    I taught photography for 37 years so did not end up with a major career during this time. My pictures sell, but not for huge prices. Now that I am retired from teaching I need all the income I can get. The real issue at the bottom is what is art and who owns its image? If anyone can define this question, then perhaps we will have an answer about appropriation. I consider my pictures art, and in this sense their value is caught up in how many I can sell as art. If another artist starts using my images to make their art, then as I said, I should be compensated in some way; no question about it.

    My current work is in fact a form of appropriation. I have been taking photographs of photographs that are in public places, mostly advertising photographs that I find in store windows. In part my project is not art but documentary photography. The alteration in my images comes from including the reflections and other objects in the displayed environment plus normally photographing the photographs at an angle that distorts along with and the fact that I am rephotographing the photographs. Because these rephotographed images appear in public they seem to me to be in an entirely different category. I am documenting them in their place of display. Everyone has access to seeing them, and in most cases the image maker was paid a very handsome sum for their production. Also, primarily these images are not signed, are a part of an international advertising campaign, and the public has no idea who made them. But, in my case there are exceptions, as a couple of these public images were reproduced for museum posters to advertise shows of the artist’s work and then were displayed in kiosks in Europe. One of them was made by a friend of mine. My response was to give the artist credit in my title: For example, the title of the one by my friend now deceased is, “Robert Mapplethorpe in Florence.” To me this title honors Robert and is both an image by him and by me with my recorded reflections added.

    I guess the issue is not exactly simple after all, but giving the original artist (artists) credit is critical to how I think and feel about photographs that are/were incorporated into an art work done by someone else. With my rephotographed fine artist images I am dealing with something copyrighted, reproduced again (for the poster) but included in my new photograph that is copyrighted. Are Richard Prince’s paintings / photographs appropriations that have been copyrighted? What if I go to a museum that doesn’t allow photography and make a photograph of one of his appropriations, include part of the museum in my image (like Thomas Struth), copyright my image and sell it in a gallery show? For sure I would give Richard Price credit. Where would my ‘illegal’ photograph with the inclusion of his photograph that used another person’s photograph that was then photographed by me stand in the legal battles of today?

  31. Assuming for the moment that the ruling withstands appeals:

    Are Pince’s “paintings” eligible for copyright? If so, who owns those copyrights?