Richard Prince, “Back to the Garden” (2008 ) (image via artnet.com)

The art world is apparently supposed to line up behind Richard Prince. If you’re radical right now, you view intellectual property (IP) as a vestige of an archaic market strategy. You think of IP enforcement as a form of hoarding, and you think that anyone who objects, just “doesn’t get it.” And any artist who wishes to build a brand or even to get paid for serial prints (mind you, this includes some of the very radicals mentioned above!) — well, they are supposed to line up behind Patrick Cariou. If you’ve got a vested interest in a body of work, you think of appropriation artists as vermin, lazy, energy-sapping parasites. And you think that anyone who objects is an egomaniac with a crazed sense of entitlement.

Want to pick a side in the debate? Here are a few things you’ll need to know.

Patrick Cariou is a photographer and writer. His book Yes Rasta (Powerhouse Books, 2000) represents a body of work years in the making. Dismissed as mere documentation by the Richard Prince defense team, the book, like Cariou’s previous Surfers (Powerhouse Books, 1998), contains photographs of documentary nature that came about through a total immersion in the culture of its subjects, and the trust and familiarity that lend the project depth and focus.

His latest work, Gypsies, (Powerhouse Books, 2011) is a joint project with filmmaker Guy-Laurent Winterstein that traces the the Rom people (Gypsies) from Europe to India. It represents a decade of work.

“Canal Zone” Invitation currently available on eBay

Richard Prince is a guy with scissors and a squeegee whose body of work under consideration, Canal Zone, consists mainly of Cariou’s Yes, Rasta compositions carelessly cut up and painted on, and then pasted to canvases: these derivative works comprise a childish, half-baked story-board for an as-yet-unmade film about a guy in a Rasta band.

Prince made art history in the early 1970’s with his “rephotographs” (pictures of pictures). His Cowboys series of rephotographs are iconic. After that he painted jokes. Everyone, including this writer, thinks those cowboys are the bees knees and the joke paintings are some awfully cute stuff. We like them.

By contrast, Prince’s latest endeavor is a series of stupidly composed pieces featuring deliberately goofy de Kooning cut-outs superimposed on some pilfered porn. I estimate these were composed within two nine-to-five work day windows. If not, the artist is very slow.

Everyone has enjoyed liking Richard Prince. Before Canal Zone, few people knew who Patrick Cariou was. This is due, at least in part, to the fact that Cariou had not sold or licensed the Yes, Rasta photos excepting private sales to friends and acquaintances.

Cariou did, however, wish to show his work with a view toward future licensing. In court testimony, Cariou stated that he had been in the process of planning a show with Christiane Celle when negotiations were stalled by the opening of Canal Zone. Celle cancelled Cariou’s show because, according to court documents, 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.”

Richard Prince, “Jokes” (1999-2000) (image via artnet.com)

Put bluntly, Prince’s cribbed canvases had usurped the market for Cariou’s photographs. One of the main reasons markets cling to intellectual property law: it prevents such conflicts from occurring.

Because Prince, according to his own testimony, didn’t bother to leverage Cariou’s imagery to comment upon or to create any relevant new message, his derivative work was not transformative, and relied too heavily upon its source material to be considered a unique new object. Let’s also put that bluntly: Richard Prince would not have made Canal Zone had it not been for the lifted Cariou photos.

And yet, according to Fabrice Bousteau, editor in chief of Beaux Arts magazine, Prince has intimated that if Cariou’s imagery were removed from the Canal Zone series, they would still be valuable and Cariou’s work would still be worthless.

I, for one, agree that Prince’s Canal Zone could benefit from losing Cariou’s imagery, and I would love to see Richard Prince make the effort to execute this new “de-appropriating” strategy. It would be right up there in the amusing tales of art wars with Rauchenberg’s “Erased de Kooning” (and would, therefore, be the perfect follow up to Prince’s current lame color-forms de Kooning homage). Maybe the effort would redeem him.

“Garden sans Cariou,” the first ever De-Appropriation, by Cat Weaver

In March 18, 2011, the Court for the Southern District of New York granted a summary judgment in favor of Patrick Cariou in his suit against Richard Prince, Gagosian Gallery, Lawrence Gagosian and Rizzoli International Publications. The decision was harsh, to say the least, demanding that all infringing works as yet unsold, and all resource material, be impounded and handed over to Cariou, and that all current and future owners of these works be notified. Prince et al. plan an appeal, which, if lost, will mean that the Canal Zone series of works will, for all legal intents and purposes, be destroyed if Cariou decides it should be.

When asked by ArtInfo if he saw “this ruling as having any negative effect on artists,” Cariou responded:

It’s going to educate them. I don’t think it’s going to harm anyone. I don’t think artists should be offered a different standard from anyone else. When you’re 12 years old your parents tell you “Don’t steal the candy,” and we all try to apply that rule, and if you don’t people sometimes end up in jail. I’m interested in Warhol’s use of the Campbell soup can and Rauschenberg using readymade things — that I’m okay with. If it’s to steal photographs or paintings to create something, you shouldn’t be an artist in the first place. To me Richard Prince is more of an art director than an artist. I think he’s a good art director, and a great thief.

Mark Borghi who recently put together a Richard Prince mini-retrospective coinciding with Prince’s currently running show at Gagosian Paris, seems to agree that no harm had been done to Richard Prince: “If anything, it makes him more famous.”

The law firm of Boies, Schiller & Flexner will handle the appeal for Prince. Dan Brooks of Schander will continue to represent Cariou.

The problem with any notion of an appeal right now is that the court’s 35-page decision creamed Prince, documenting in detail its reasoning against his defense on all possible exceptions to the copyright provisions that constitute fair use. The court’s decision accuses the artist and his gallery of out-and-out bad faith in their infringement, an impression that Richard Prince helped foster when he said of the photos, “it didn’t occur to me to ask him, and even if I did and he said no, I still would have taken them anyway,” showing utter contempt for copyright law and for the other artist’s work. In fact, Prince had been so cocky that he made no argument for transformative use, stating that the Canal Zone works were about nothing.

So what will Prince fall back on in his appeal? What’s left?

I feel pretty confident in guessing that the new, and rather more organized, Richard Prince defense will attempt to break new ground in fair use claims by muddying still further the already muddy concept of “transformative use.”

In what will be chest-poundingly declared art itself, RP and his posse will attempt to introduce PROCESS and HISTORICAL VALUE into the concept, making the artist’s every squeegee, his every scissor snip and restorative cocktail count for transformative use — and every fart and nasal whistle in his canonical career something that “transforms” everything the man touches.

You heard it here first, folks. As one of his collectors said, Prince is “appropriating the era.” The era, mind you.

Independent curator, Cat Weaver is the Brooklyn-based writer and editor of The Art Machine, a blog that covers the art market in all of its gossipy glory....

55 replies on “Patrick Cariou Versus Richard Prince: Pick Your Side”

  1. I’m curious how Richard Prince would react if someone took his “Jokes” series, changed the font and colors, maybe pasted something around the text to make a collage, and then tried to sell the work.

    1. Actually Richard Prince has stated that he wouldn’t mind. That said, I’m guessing that is gallery, and the gallery’s legal team WOULD mind very much. It’s worth a try, though, OHO: I’m thinking T-shirts.

    2. Oh, if he somehow wins the appeal… I want to see someone set up right next to Gagosian on the street selling full sized prints of Prince’s work for five bucks.

      1. already been done, theres a guy on the street who makes copies of all the currently hip painters in miniature and sells them cheap. Word is that Prince bought some and thought they were great.

          1. Prince is not worried only because the art world these days tends to revolve around connections to the major collectors rather than talent. But the art game still is, in part, about talent. What I think would raise some ire is if a major artists took Prince’s work, re-configured it as their own, and sold it for top dollar. Then Gagosian’s lawyers would get involved. Similarly, limited edition prints (with this signature forged–why not, he forges celebrity signatures all the time) would probably garner some attention. Prince was furious when some fashion photographer’s started doing “girlfriends” for a few French magazines. He’s relaxed only when he knows his market is actually secure.

            Which is the reality. For instance, I’m sure he gets a part of book sales from his exhibition catalogs. Money from publications is licensing derivative works. Likewise for the prints that are on sale at Gagosian’s bookstore. He uses copyright when he wants it and discards it when it’s inconvenient. He’s just a rich A*Hole who thinks he’s become powerful enough to bully people around.

    2. Namely that “RP and his posse will attempt to introduce PROCESS and HISTORICAL VALUE into the concept” of transformative use…

  4. the article seems to take the side of Cariou, and makes the curious point of emphasizing the time it took Cariou to produce his photos (“it represents a decade of work”) vs. the estimated time it took Prince to appropriate the image (“I estimate these were composed within two nine-to-five work day windows”) as evidence of Cariou’s legitimacy as an artist. A decade’s worth of photographs exploiting marginalised people- in some instances not even bothering to call them what they prefer to be called (“Rom” not “Gypsies”)- is not inherently more legitimate than Prince’s 5-hour re-evaluation of the situation. While it is fun to take potshots at a wealthy man, I don’t know if it’s entirely justified.

    1. Prince’s wealth has nothing to do with this. It also doesn’t sound like you have any evidence of Cariou exploiting marginalized people. If he has lived with them and has earned their trust, producing a book in the process (and committing years of his life), than I think he deserves respect for his accomplishment.

      If you don’t like the book or the work, fine, but don’t assume his subjects feel that way since that would be stereotyping his subjects into a way you assume they would feel about his work.

      Also, the title of his recent book seems to be on purpose and the description explains that the Rom do not use the term Gypsy. The other sad reality is few people actually know that the Rom call themselves that, so perhaps the book’s editor chose the title and insisted on the use of the word.

      It would also be nice if you used a real name if you choose to criticize someone and not hide under “guest.” We normally do not allow anonymous comments.

    2. I did indeed take the side of Cariou: this is an essay, not an article.

      I made note of the time taken because time taken does indicate dedication and craft and even, perhaps, added quality — but, more importantly, it indicates WORK, LABOR, and EFFORT. I emphasized Prince’s carelessness because I think his laziness shows in his latest work and also because I find it ironic that Prince, who is so clearly phoning it in, would dismiss Cariou’s photos as mere documentation.

      What Prince did with Canal Zone, was no “re-assessment.” He even said as much. And no matter how much time he actually did spend, Canal Zone looks and feels like he crapped it out.

      I made no big point about money because I hate wealth-bashing. Prince’s personal success only matters in that it seems to have made him think the world should allow him to pilfer other artist’s and to ignore the laws that govern such things.

      Now: about these strange accusations of “exploiting marginalised people- in some instances not even bothering to call them what they prefer to be called (“Rom” not “Gypsies”)” let me just state that Cariou lived with the Rastafarians he photographed and showed a great respect for their lifestyles. A respect that Prince spat on when he used women the way he did in Back to the Garden: Cariou did not photograph very many women out of respect for their wishes, and when he did, he did it with their permission and with respect.

      Accusations of exoticism could be labeled at any documentary photographer who chooses to seek out the beauty of foreign cultures. The Rom, by the way, are called by that name by Cariou: “Gypsies” is a loaded title: don’t be fooled by the irony.

      1. Cariou stated on Art Info that he might sell some of the Prince paintings should he win and use the proceeds to help the Rasta. That confuses things conceptually a bit, No? The great white hero helping the noble savage. Gimme a break. Can you imagine a white Frenchman showing up in Watts to make a romanticized photo document about the culture? There used to be a market for early 20th century black & white photos/postcards of nude Africans, Arabs and Indians. You can still find them at the book stalls along the Seine in Paris. Carious photos are no different.
        He seems to have been harmed most by his own dealer who didnt know enough to use the notoriety brought by mr prince to her artists photojournalistic/French colonial mentality/exotic exploitation pictures to make some money for her artist.
        Also equating time spent on making art with meaning or quality is just stupid. Its about the ideas.

        2. No one “equated” anything. The idea was that craft and thoughtfulness might take a bit of time and also the that work and labor should be paid for.

          This whole white man/black man thing is a projection: documentation is not necessarily a master/slave dynamic. Cariou was asked if he felt he owed something to his models and he agreed.

          1. there is another book similar to Cariou’s available on Amazon. One comment in the reviews section summed it all up poignantly “I think white folks need to hear what we think about them using us (people of color) once again for their exploits and financial gains. “

          2. The book referred to above is titled Dreads.
            Cariou’s coffee table book serves not as a “documentation” but as a continuance of colonial cultural exploitation.
            Excerpt From Colonialism: an international social, cultural, and political encyclopedia; Art by Elizabeth Perry
            “Mass produced images of the colonized Other powerfully confirmed and reproduced the stereotypes that supported European expansion and control. Early twentieth century advertising posters for the British Empire Marketing Board depicted scantily clad natives happily picking cotton in the Sudan or gathering cocoa pods in the Gold Coast. Picture postcards claimed to document bizarre indigenous practices and beliefs. Images of the mysterious Orient were ubiquitous in colonial-period advertising, adding a special allure to European products – from Camel and Fatima cigarettes to Oriental Delights candy. Collecting photographic and commercial imagery (often pasted into scrapbooks) was a popular nineteenth-century pastime; exotic and picturesque colonial subjects were frequently reproduced photographic subjects. These images were powerful in forming public opinion; photographs in particular were widely believed to represent the accurate truth concerning colonized people and places. The visual representation of colonized people as savages not only helped to legitimate imperialist expansion but also contributed to the formation of nationalist European identities (based on theories of racial and cultural inheritance).
            The Myth of a pure and timeless primitive art served imperialist needs in providing a justification for colonialism, but it also arose from a more general nostalgia and longing for the lost authenticity of the local and handmade that accompanied industrialization.”

          3. As I said before, ANY person who does studies of other cultures and documents those studies, can be accused of these things: but they are vapid accusations when the photographer in question does studies of outsider cultures of all colors and origin. The man did a book on Surfers and is doing one on “gypsies.” He’s an anthropological photographer. He embeds himself in a culture and takes pictures.

            Another thing to keep in mind is that the issue is who did the WORK and who’s benefiting. In this case, Cariou did the work, and Prince was benefiting.

            One man spent years working on a collection of photos and another man took all that work and shat on it just because he wanted to.

          4. anthropologists dont do coffee table books. He is exploiting! Who cares if he did surfers, I grew up in a surf culture and I resent him stealing images from a life he only knows skin deep to make a coffee table book for rich people. Was that an immersive anthropological study? The “gypsy” thing is even more so. Ask a real anthropologist what he/she thinks about it. He’s just looking for the next exotic thing for white people to put on their glass table to ooh and aw over cocktails. You say Prince shat on his work, does that mean you dismiss as shit all collage in contemporary art that samples? An entire genre is shit? how about half the music being made today that is remix? is that just lazy or does the transformation make something new?

          5. Anthropologist do so do “coffee table books” of their photos. “Coffee table book” is just a newly disparaging term for oversized book of photographic prints.

            When I say Prince “shat” on Cariou’s work, I mean in that he not only asked for the book for free, leveraged the image in bad faith, but also then went on to disparage Cariou as an artist AND to diss Cariou’s respect for the women of the Rasta culutures by using them in his collages as sexual centerpieces.

            I do not disparage “all collage”, although, I’m pretty sure the world could live without most of it. Yes, even Rosnenquist. (SHOCK!!!)

          6. Wow, are you the moderator, or just a genious? You seem to know everything and have the last word. Wow. To think someone who cares about art defends coffee table books and dismisses collage as an artform. Move over Rauschenberg, here’s a book of pictures I took of “gypsies”!! When you have a chance, can you let me know which good anthropologists produced coffee table books? Also, I think you just dont get Prince’s work. He borrows imagery, puts them in a new narrative and makes something new. Its a comment/reflection on our culture, particularly the white male obsession with pin-up imagery. Its strange that when an artists becomes successful, its seen as a bad thing.

          7. Even with my comments above saying Mattra is right about the problematic nature of Cariou’s photos (indeed, what anthropologists make coffee table books?), I won’t go so far as to defend Prince. I really want his intellectual labor to be worthy of celebration, but I find the work, and his thinking about his practice in general, pretty vapid. His deposition in this trial is a fascinating read if only in that it reveals how intellectually uninteresting Prince is. That document says more about Prince than any of his appropriations.

          8. I know what Prince does and I’ve written a lot about it. That’s why I’m free to say the things you find so mind-bending. ‘Cuz. Wowl I’m a genius.

          9. I think the questions of who’s benefitting is an important one. Did anyone ask the rastafarians? Did they benefit? I’m sorry but Mattra is right. From a postcolonial perspective, Cariou’s photos are very problematic, as in the kind of thing you’d really get hammered on if you were to show them in art school today. IMHO you have exploitative photography being pilfered by a superficial artist. It’s embarrassing. Two white guys fighting over who’s expression of black people is more “authentic.”

          10. If I stand outside of a culture and take pictures of it and show them to the world, I’m a racist. Puh-leeez. If I stand outside of many cultures that I study and they are of people of different colors and I publish them: I’m a racist when I show the one’s of people who’s color is different than mine — otherwise I’m okay? Puh-leeez.

            And who cares “what you’d get hammered on?” What are we in kindergarten worried about our peers? If you’ve a mature viewpoint, speak out.

            I must point out that the “two white guys” are not duking it out over who’s depictions of black people are more authentic: you are. They were just arguing over who owns the images and in what ways is that ownership limited?

          11. I didn’t say you’re a racist, that’s you projecting, perhaps. My point is that the representation of the other is historically constructed through the West’s lens. Again, I agree with Mattra, Cariou’s book is exoticism, and is but the latest in a long series of such projects.

            And I didn’t mention anything about kindergarten, again more projection. I’m not sure I would characterize a view such as the one you seem intent on taking as “mature,” if by mature you mean “developed.” I would call it “immature,” as in “underdeveloped.”

            And really? The two white guys aren’t duking it out over who’s images are more authentic? Did you read Prince’s deposition?

          13. Not that I necessarily want to defend Prince, but Mattra is correct- you’re conflating the general category “labor” with manual labor. Art, for better or worse, has been pre-occupied for some time now (especially with conceptual art in the ’60s/70s) with intellectual labor. So when you say “work and labor should be paid for,” you’re in a sense discounting the value of intellectual labor. Part of the problem perhaps is that it’s difficult to measure intellectual labor. But I don’t think it’s right to dismiss it or subordinate it to manual labor.

          14. No one’s discounting intellectual labor! Prince’s intellectual labor is definitely taken into account here. It is dismissed as barely existing in this case. The man did nothing.

          15. I don’t disagree with you here. The deposition makes that clear. He’s a moron. But Cariou’s photos are still problematic as heck.

          16. The nature of any study, especially when done with photos, makes clear tensions between the studied society and the studier. And the lens used is what it is. You take that with a huge grain, perhaps a block, of salt. We all get that. But condemnation of the entire genre is just western-guilt infused crap. We all like to have a look-see and we like it best when we can have some sort of dialog along with it; the wise do NOT take accuracy — neither of insight or vision — for granted.

            As for coffee table anthropology, I must say, if it repels you, so be it. It’s a genre and Amazon bookstore is full of samples of it. Some written by the photographers, some jointly written with anthropologists or even poets like Maya Angelou.

            That said, the whole point of my essay was not, in fact, to evaluate such things, but only to put forward an opinion about the use of law in this case and to take a point of view that favors the author and not the appropriator — again, in this case. (I’ve taken other positions in other cases). I based my opinions in this case upon the flat out obvious legalities and upon the obvious laziness of Prince’s “use.”

            I see this entire dialog, therefore, as a sort of side dish. When we evaluate the art itself, we step outside of a dialog about IP and into one about aesthetics. And in that I’ve been, quite frankly, misunderstood. I do not have it out for Richard Prince, whom I think of as a sort of idiot-savant who did some really important and very thought provoking early work. Nor do I have a boner for Yes, Rasta, though I think it’s some fine stuff.

            It’s strange when you allow yourself to be deflected onto a side road like this. It’s very easy to be led astray. Never in my life would I care to compare the talents or the quality of any artist in one genre to another in a different genre. I would simply find that to be a waste of time. I meant only to compare effort.

          17. It was you who stated that Cariou was “an anthropological photographer”. I merely wished to point out that true anthropology is a serious science that covers economic and political organization, law and conflict resolution, patterns of consumption and exchange, material culture, technology, infrastructure, gender relations, ethnicity, childrearing and socialization, religion, myth, symbols, values, etiquette, worldview, sports, music, nutrition, recreation, games, food, festivals, and language.
            What repels me is not “coffee table books” but the flippant use of the word anthropology to defend exotic fashion photography.
            “Never in my life would I care to compare the talents or the quality of any artist in one genre to another in a different genre. I would simply find that to be a waste of time. I meant only to compare effort.”
            Effort…… effort? That is a criteria in the dialogue? Are you kidding?

          18. Nope. The amount of work an artist puts into creating a derivative image actually does reflect in the court’s decisions. A piece is considered to be a new and unique piece if there has been more manipulation — the latest and most annoying artspeak way to say it: “interference.”

            So, yes: I’m serious about comparing how much work each artist put into the creation of their work.

            I also think that part of what copyright protects is the dignity of one’s labor: it encourages creativity if one can own one’s work and be rewarded for it.

  5. “Put bluntly, Prince’s cribbed canvases had usurped the market for Cariou’s photographs.”

    Not for anyone who can see them. If you seriously believe that the neo-colonial romanticism of a Cariou can be supplanted by “a childish, half-baked story-board” then you’re insulting Cariou far worse than Prince has.

    “”RP and his posse will attempt to introduce PROCESS and HISTORICAL VALUE into the concept” of transformative use… ”

    That would be nice. Or they could demonstrate a knowledge of cultural history and the siren song of censorship rather than a vapid careerist obsession with what could be called gossip if its drearily familiar media narrative wasn’t so carefully stage managed by those plucky underdogs: expensive copyright prosecution lawyers.

    1. “Neo-colonial romanticism” or not, they can be and were supplanted by “a childish, half-baked story board.” Cariou had a wall and lost it because Prince’s copies were shown first.

      The market is not always about quality. Or else you’d never see a Mr. Brainwash anywhere.

      I think that process is tired modernist bollocks and historical value is mere sentiment.

      The world will live with or without Canal Zone.

    2. I do want to add that, I have predicted that PROCESS will def. come up in the appeal process because the argument that an artist’s process is itself transformative is already being bandied about by the press. Surely Prince’s appeal will have to make use of this since It will make “transformative use” an even muddier concept but will also make it easier to claim.

      Add to that claims that a certain artist’s work is historically important and you’ve got a heavy legal bias favoring Prince and also paving the way for more appropriation artists to boldly go where everyone has gone before.

      1. The usurpation, in primary form, came from not trying to license the issues in the first place. Any time somebody makes derivative works, they are supposed to contract that.

        1. Wow, can’t type today….”came from not trying to license the images in the first place.”

  6. “…what could be called gossip if its drearily familiar media narrative wasn’t so carefully stage managed by those plucky underdogs: expensive copyright prosecution lawyers.”

    Eggsactly!
    😀

    1. 1) There is no such thing as a ‘copyright prosecution lawyer.” There are lawyers that specialize in IP, branding, trademarks and copyrights. Prince’s lawyer was likely one of those. I know his new ones are.

      2) Richard Prince has hired the VERY expensive lawfirm of Boies, Schiller & Flexner for their appeal. The American Lawyer’s national top 100 firms ranked Boies Schiller fourth in profits per partner, third in revenue per lawyer, and in 2009, the firm was ranked at 89 in gross revenue.

      3) Don’t be so naive as to think that you took one of Prince’s cut-ups and put it on a T-shirt and sold it, Prince’s lawyers wouldn’t sue you. It’s a common story. Every artist protects their brand, their works, and their multiples or editions and prints. They care very much about copyrights when it is theirs that is being infringed.

      1. “Every artist protects their brand, their works, and their multiples or editions and prints. They care very much about copyrights when it is theirs that is being infringed.”

        Hmmm…gross generalization here. There’s a whole world of artists that don’t give a hoot. So I guess you mean, every “blue ship” artist, or something like that. But even that doesn’t hold water entirely.

        1. That would be “blue chip.” And, no: I mean every professional artist. The others, well: I don’t think about them much.

  7. i used to make collages from paper found on the city sidewalks … it never occurred to me to check the sources of the images … or kids in art class making collages from (big bucks) photos in magazines … what really is the deal here? … money? and only money?

    1. Do you have something against money? Should artists NOT wish to get paid for their work? Aren’t we WAYYYYY past that misinterpretation of art?

      1. “WAYYYYY past that misinterpretation of art” is what interpretation exactly? That creativity shouldn’t necessarily be tied to economic incentive? I didn’t know we were past that. Or that we based our philosophies on what is fashionable at the moment (i.e., gregorylent, Cat Weaver thinks you’re argument is “out of style”). Very conservative position.

        1. Actually, I that anti-materialsm and the notion that art can and should exist for art’s sake is out of date. Yes.

          I think some art is for art’s sake. And some is for money. And that’s all okay.

          1. That’s not my argument. I am not arguing for “l’art pour l’art,” which, being a kind of “modernist” concept, is obsolete if you believe that modernism is done (which I do). Rather, I am arguing with the commonly used line by people who defend IP that economic incentive naturally drives creativity. They are two fundamentally different concepts.

          2. You made no such argument. But had you done so, I’d have pointed out that IP is not just about economic incentives, but creative ones as well. IP law protects the rights of authors to control the quality, the distribution, and the initial market for their works. It also protects those who wish to distrubute and use those works. The idea of intellectual property law is to encourage creativity and the idea behind fair use is to balance the rights of authors with the right to free speech.

    2. One of the factors used to evaluate “fair use” is whether or not the images used were available to purchase or liscence. In the case of “found” images, likely they were not and therefore were indeed up for grabs. As to what “occurs” to the people who use other people’s work, that is moot: no one cares if you happen to forget to follow the law or respect your peers.

    1. It’s not dependent on opinion, but it does hinge on often subjective interpretations of the law and of the facts. I think that as the art world gets more law savvy, there will be more carefully crafted responses to the first case (use and purpose) as there was in Blanche v Koons. Also, I think expert testimony will be introduced on a more frequent basis. See my latest for comments to that effect.

      1. Agreed we’ll see more of Blanche v. Koons, but the opinion has some major flaws–look to it possibly being overturned. Similarly, there is no need for expert testimony–the four prongs are actually very straightforward. The only reason to bring in experts is to try to re-orient the statute to transformativeness, which is folly. Art isn’t based on objective criteria that can be delineated in this way–at best, experts can offer their subjective opinion and place a work in a historic context. But there is almost no way to decide which opinion is more valid when you bring in two PhDs. in art history. Even worse, two MFAs. Anyway, the other three prongs are very easily assessed, so I’ve yet to hear a good reason why transformativeness should be what everything hinges on. Lawsuits are exceedingly expensive and I highly doubt the opinion will have an effect on most artists–it just will hit some of the richest artists (who are fighting all the harder not to have to pay the people who made their work)…

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