Patrick Cariou Versus Richard Prince: Pick Your Side

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

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

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.

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