You’ve just made a series of photographs that really make you proud. What’s more, a gallery contacts you to offer a show of your latest project, including a full-color catalog and other marketing materials. The night of your opening, you notice a man making photos of your displayed work; you optimistically assume he’s another gallery owner taking notes in advance of a pending offer to you for another show.
Eight months later, you attend a reception at a high-profile gallery on the East Coast, and are shocked to see the exhibition is of your photos, barely changed, the subjects of the mystery guest’s acclaimed project. What’s more, all of the works are priced in the tens of thousands of dollars, and many have already sold. You’re outraged, and that anger only intensifies when your upcoming show of the original images is cancelled, the gallery committee reasoning your work is “too similar” to the more prominent artist’s show of his photos of your displayed images.
Total fiction, right? Wrong.
In 2011, artist Patrick Cariou sued noted appropriation artist Richard Prince for infringement on the grounds that Prince had reused in his artwork 35 photographs from Cariou’s 2000 book, Yes, Rasta.
“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 “Ile 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” (784 F.Supp.2d 337 (2011)).
Cariou, the plaintiff, alleged Prince’s show of the works resulted in Cariou’s own representing gallery owner to cancel an upcoming show of his photographs, causing him substantial monetary damages. In her finding for the plaintiff, Judge Deborah A. Batts’ opinion noted:
“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. Accordingly, the amount of Prince’s taking was substantially greater than necessary, given the slight transformative value of his secondary use” (784 F.Supp.2d 337 (2011)).
To arrive at the decision, Judge Batts applied a four-factored copyright infringement test:
- What was the purpose and character of Prince’s work?
- Was the new use sufficiently transformative of the original work?
- Did the new work serve a commercial, or educational purpose?
- Was the new use “in bad faith?” In other words, could the defendant have found other works in the public domain that would have suited his purposes?
- What was the nature of the copyrighted work?
- What portion of the copyrighted work was used?
- What was the effect of the use on the market for the copyrighted work?
In all four factors, the judge found Prince had violated Cariou’s rights, and instructed Prince, as well as the gallery exhibiting his work, to deliver all infringing materials for “impounding, destruction, or other disposition, as Plaintiff determines,” to notify all “current or future owners of the Paintings” that they could not sell nor display the paintings due to their infringing nature, and to cease any further “reproducing, adapting, displaying, publishing, advertising, promoting, selling, offering for sale, marketing, distributing, or otherwise disposing of the Photographs or any copies of the Photographs” (784 F.Supp.2d 337 (2011)).
Prince and the representing gallery have appealed, but the appellate court has yet to deliver a decision.
Prince has a history of such controversy. In 2005, one of his Untitled (Cowboy) images sold for more than a million dollars; it’s a reproduction of an image by Sam Abell, one showing a cowboy riding on sand against a backdrop of pillowy clouds on an azure sky that Abell shot as part of an advertising campaign for Marlboro cigarettes. Prince cropped the photo from a Marlboro ad in a magazine, then enlarged it to an extraordinary size; he made a fortune on the sale of the image. Neither Abell nor Marboro were credited or compensated.
It’s a still-bubbling controversy whether the Prince’s work is art or plagiarism. Proponents of Prince argue his creations are commentary on created realities, while critics have gone so far as to claim he is no more than a purloiner of others’ creations.
The courts have yet to deliver any resounding decision in the matter, but one thing is very clear: Any decision will weigh heavily on the definition of legal art in the United States.
Interested in learning more? Take a look at this article from the New York Times, the case notes, and Rachel Corbett’s article about the latest in the case between Cariou and Prince. Then feel free to weigh in by commenting below.