Will Richard Prince Have to Destroy Rasta Photos?

The result of a lawsuit levied against Richard Prince’s “Canal Zone” series of photos has determined that the artist may be forced to destroy the works, as they violate copyright laws protecting the series of photographs appropriated by Prince, “Yes Rasta” by French photographer Patrick Cariou. In the end, what happens to Prince’s work is up to Cariou.

For his series of works, Richard Prince took Cariou’s photos of members of the Rastafarian religion in Jamaica and collaged and painted them, adding splotches of paint and clip outs of other images. One particularly divisive image featured a Rastafarian man shot portrait-style in the jungle, turned by Prince into a guitar-playing blue-eyed rock star. The court case revolved around whether or not Prince’s alterations of the Cariou’s photos constituted total transformations of the originals, and thus protected under fair use laws. The answer handed down by the court was that Prince’s works didn’t count as fair use of the images — in a word, Prince’s works were too derivative.

See the full 38 page PDF version of the court ruling here.

Salient points in the case included that the artist and Gagosian gallery (who represent Prince) failed to approach Cariou for permission to use the images and also failed to remove Prince’s works from display when Cariou requested it, all while profiting from Prince’s use of Cariou’s images to the tune of $10.5 million in gallery sales.The court ruling on the appropriation case has now declared Prince’s “Canal Zone” works illegal, meaning that they cannot legally be displayed in museums or otherwise. So will no museum ever again show the “Canal Zone” works? That seems to be the case.

Charlotte Burns at The Art Newspaper writes,

The defendants must also notify in writing any current or future owners of the [Richard Prince] paintings to inform them that the works infringe Cariou’s copyright, and “were not lawfully made under the Copyright Act of 1976, and that the paintings cannot be lawfully displayed”.

Paddy Johnson points out that Prince’s testimony in the court case wasn’t exactly sterling, and that the artist failed to provide any reason why appropriating Cariou’s works was particularly necessary to the meaning of his work; Prince stated that “the work had no specific meaning.” Aside from adding no particular value to Cariou’s work or transforming it, Prince’s work actually negatively impacted Cariou. An interview with the photographer at Artinfo shows that a gallery planning to show Cariou’s photos decided not to after Prince showed his appropriation works based on the same images at Gagosian gallery.

In the end, Cariou can choose to chase down the remaining “illegal” Prince works and attempt to have them destroyed, though I assume he’d have a difficult time of that with private collections. In the Artinfo interview, Cariou explains his mixed emotions and what he might do with the aftereffects of the ruling:

It not clear right now what I am allowed to do with [Prince’s works] — we have been asked to check that with the judge. I don’t want to talk too much about that. I can destroy them if I want to, but that’s also an extremely drastic decision to make. Destroying art if you don’t like it, that’s something you have to think extremely deeply about… What I wish I could do is get some money from them and open a foundation in Jamaica for Rasta kids in the West End near Negril, a school probably and a restaurant for them where they could hang out together.

In that case, art victimization turns into charity. But is this really a case of victim and predator? The fair use laws hinge on semantic interpretation of the word “transformative.” Richard Prince’s works weren’t deemed transformative, but would in retrospect, would Warhol’s? Should all collage artists be subject to this same scrutiny? It doesn’t seem worth it besides in the validating case of multi-million dollar blue chip money. It’s the money that makes this case significant, and that’s all. It’s not the art, it’s the justification.

To destroy Prince’s works would be to permanently take them out of physical existence, and thus prevent any future damages from copyright infringement on the original works. But isn’t that iconoclasm going too far? Prince’s work has already been digested as part of the American artistic zeitgeist, and that seems to be history worth preserving. Could the images somehow be taken out of circulation without damaging the original works? That and paying damages to Cariou seems to be the best path to take, but I can’t say how that would be carried out. We’ll just have to see what Carious decides to pursue.

Either way, Prince’s works are already iconic, along with (in part) Cariou’s own. It will be impossible to write these pictures out of history entirely, copyright infringement or not. I respect the fact that with this case, Cariou will gain some measure of ability to profit from his own work, an opportunity that was clearly damaged at the making and showing of Prince’s own pieces. The issue of the quality of both series of works, however, is outside the scope of legal debate.

According to Artinfo, An 11 a.m. hearing has been scheduled for May 6 to assess damages and attorney’s fees that Cariou will be due. I’m thinking this will be a large amount. Carious notes that the Prince team has a chance to fight the ruling: “They have one option that they can try to go back to the judge to ask for 20 days more [to return the “Canal Zone” paintings to Cariou], but basically we don’t care.” More as it comes.

Resources:

• A PDF of the final court ruling on the Prince/Cariou case is here.
• Artinfo has an extensive interview with Cariou exploring what the outcomes of the case might be and how the photographer feels about the whole thing.
• The Guardian has a good cursory summary of the context of the case as well as its outcome.
• Greg Allen has an interpretation of the case on his blog, in parts one and two. Money quote: “Not only would the current operating assumptions of fair use and transformative use be ratcheted way back, but the contemporary art world would be turned upside down.”
• From Art Fag City comes a point-by-point analysis of the ruling, and a final summation: “These aren’t Prince’s best works, but they are now part of a very compelling narrative that has the potential to shape American art in the future.”
• The Art Law Blog has another play-by-play analysis of the ruling, plus a great collection of reactions from around the blogosphere. Gallerist Ed Winklemans calls the outcome “chilling for appropriation artists.”
• The Art Newspaper has an analysis of the case that’s also useful for background reading and images.
• At Artnet, Charlie Finch seems vaguely regretful about the whole case, but notes that the series was among Prince’s “laziest.” He suggests a final revenge scenario: “Rough justice might demand that Cariou himself do the destruction and that Prince photograph the process and produce a new, very ironic series that would sell for tens of millions apiece.”