Lawyers Weigh In on Appropriation Art and Fair Use

The New York City Bar Association’s “What We Talk About When We Talk About Appropriation: Contemporary Art After Cariou v. Prince” was, as billed, “a frank discussion of fair use and artistic practice.” And it was, indeed, frank, with all six panelists speaking plainly and tough audience questions encouraged. But it was also, clouded and meandering, the way that all intellectual property discussions are.

For those who may need a refresher, Cariou v Prince, involved photographer Patrick Cariou who sued Richard Prince (the grandaddy of appropriation art, most famous for his re-photographs of cowboys and cigarette ads) for copping a wanton number of photographs from Cariou’s published collection, Yes, Rasta. Prince lost the first round and an appeal is pending.

What captured the art world’s attention, and sharpened thee focus of intellectual property (IP) law experts was the tsunami of speculation that followed the court’s very harsh decision against Prince in which he was ordered to hand over the contentious works to Cariou and to notify all current owners of the essentially cancelled series.

Was this a turning point? Would it have a chilling effect on appropriation art? What was governing these decisions? Were they out of control?

Lots of questions and lots of emotions were stirred up and the discussions online were heated, but rarely insightful. Essays, full books even, were written. But we are left still discussing, still mulling over the same legal terms, the same issues of how to parse our copyright laws.

So … what to say? What to say … what to say about my experience listening to all of the usual very civil, very objective-sounding legal debate? Egghead ping-pong? A game of Dungeons and Dragons where the only special powers are for interpretation of the terms “transformative use” and “incentive?”

Well, now, there are those of us who wring our hands and worry like Socrates about whether or not justice is just. And then there’s Anthony Falzone, executive director of the Stanford Fair Use Project. No hand-wringing for him. He’s got an algorithm that promises to settle any fair use issue.

On a large panel, repeatedly mulling over the same cases, using the same terms of evaluation, Falzone’s no-nonsense approach comes as a surprise. It is less surprising when one reads his bio, a longish list of successfully litigated cases against IP holders and congress itself in which he freed the creative spirits of Shepard Fairey amongst other notables.

Wincing a bit at what he sees as the lack of an “organizing principal” in the current in past court decisions, Falzone stated that he believes in creating a “systemic approach” to IP law. Since copyright law was created to increase artists’ incentive to produce original creative works, it should only be enforced in that spirit.

Fair use (an artist’s right to take all or part of an existing work and use it to make her own) must be evaluated only in terms of a balance between the social benefit of the derivative work (a work made by using another’ work as a jumping off point) and it’s possible impact on any future incentive to create original work. Period.

He uses a goose-that-lays-golden-eggs metaphor. If the goose is, let’s just say, Patrick Cariou, and Yes, Rasta is the golden egg, Falzone says we should ask ourselves, can we grant fair use to Prince’s derivative work, the Canal Series without making Cariou and other photographers lose the incentive to make new work? 

Still more succinctly: Would Cariou really have thrown in the towel for good and forever if the court had granted Prince’s claim of fair use?

Implied answer: not likely.

Says Falzone:

“I think what you ought to say, when you see a given use is, does that use have important social value — is there a public interest in preserving it? That’s half the question. The second half of the question is — if the answer is yes — what does that do to the incentive to create the work on the margin. If we permit this use, or this category uses, is this going to depress incentive enough to kill the goose?”

It is common to look at IP law as a balancing act between free speech (the right for Richard Prince to say what he needs to) and incentive (the rewards Patrick Cariou can expect to reap by holding a “temporary monopoly ” over his original photographs). It is a teeter-totter, the fulcrum of which is fair use, and it see-saws between the heft of the right to fair speech and the incentive to create. Everyone agrees that these two issues are held in very fine balance when discussions of appropriation art come up. But even with a lot of agreement, there’s a lot of dissent. The teeter totter leans toward free speech for some and toward incentive for others.

Pointing out that some artists need incentive and others might work just as happily making art for art’s sake, Virginia Rutledge, an art historian and legal advisor, stood in contrast to Falzone, keeping the needle on incentive as a guide. Rutledge wanted to make clear that incentive was not “necessarily an economic interest,” She said we are concerned right now with a crisis. “Not a copyright crisis,” she emphasized, “but a cultural attribution crisis.” “How,” she asks, “do we give cultural credit, where appropriate, to image makers?”

And whereas Falzone would love to see less attention paid to “categories of art” and more to social value, erring of the free speech side, Rutledge worried that, “a work is a work is a work, but markets are different.” The needs of one goose, to optimize egg-laying, are not the same as the needs of another goose, we might say, using Falzone’s analogy. Some geese need more incentive.

The unspoken jist of Rutledge’s message: perhaps it would feel good to sweep away all the clutter and focus on a systemic formula, but sometimes context and the particular market you are speaking to — photography, music or performance art — those will add a lot to your calculations.

Claudia Ray, also on the panel, is a partner in Kirkand & Ellis, LLP’s New York office and her practice focuses on IP litigation and advice about IP protection. Named by Law and Politics Media, Inc. as one of New York’s “Super Lawyers” she takes a hard traditional line on appropriation, asking, lawyerly questions of fellow panelists that focus largely on an artist’s intent. She likes to talk about whether or not the appropriation artist “needed” to use THE specific image she used. This line of questioning. I suspect, strategically addresses the issue of “free speech.” If the artist could have said what he said in another way, then it is not a denial of his free speech to rule against him.

Ray and Falzone represent the riders on the ends of the see-saw. Rutledge rides the center, pushing however slightly toward Ray in order to insure protection to coypright holders. But where do the artists sit?

I spoke with appropriation photographer Hank Willis Thomas who’s personal “rules for stealing,” contain, “never take anything that I wish I’d done myself.” He said he was heavily influenced by Richard Prince. Asked what he thought of Prince’s claim that he had no intention at all in using Cariou’s work, Thomas marvels, “Yeah. That was a mistake.”

Thomas, himself, has no problem explaining his own intentions: his work is very message-heavy, tasked with bringing to light the hidden or sublimated tropes involved in images of “blackness.” His “Unbranded” project used eighty-two pictures of ads with the text eliminated so as to highlight the subtext. Eighty two, mind you: asking permission was hardly an option. One could spend a few years garnering enough permissions to compile eighty-two relevant images. So he “took his chances.”

The bottom line for artists like Thomas, is that copyright is an inconvenience. An attribution, explained Thomas, would clutter up the work.