Left to right: Claudia Ray (Goose), Virgina Rutledge (Egg), Anthony Falzone; Center bottom image: “Smokin’ Joe Ain’t Jemama” in Hank Willis Thomas’s “Unbranded,” (1978/2006) from the book ”Pitch Blackness” (Aperture, 2008) (graphic by the author for Hyperallergic)

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.

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. Formerly Cat wrote How To Talk About Art for Sugarzine,...

17 replies on “Lawyers Weigh In on Appropriation Art and Fair Use”

  1. Thanks for this. I just did a performance about Anna Teresa de Keersmaeker Vs. Beyonce, an imaginary case, but a real question of intellectual property rights. Your article, while interesting, continues to prove how murky this water is! http://brandjack.typepad.com/brandjack/2011/12/time-for-beyoncé-to-apologise.html

    1. That’s quite different from the Cariou v Prince case, where an artist knowingly took a whole series of photos from a photographer as his foundation. I think in the photo scrap case few people would argue that’s a problem.

      1. I would, actually. I once found a whole Oui magazine on the side of a dirt road (no kidding): I’m sure lots of photographers had a copyright or two in there. It all seems so technical, but that’s because it is.

    2. See above for answers and clues. Also, see copyright law. A quick wiki search should straighten you out as well. ANd one more thing: I lost my wallet… and I hope it’s not you who finds it.

  2. I think it was the right decision.  The focus for the original copyright and whether the subsequent use was a “fair use” is originality.  Namely, no one questioned the originality of Cariou’s work, so that was protected.  For Prince to then have a protected/original work that appropriated Cariou’s work, it to would have to be original — that is, it would have to transform the base work to something that was originally Prince.  When viewing Prince’s work, he did not transorm Cariou’s photos to something new, something original.  It is a fine line, but I think the court’s approach is still the right one, and Falzone’s approach would not work because copyright requires balancing arguments that only court’s can do.  If you find a magazine on the side of the road and create a piece with the pictures in it, you transform those pictures.

  3. Lets face it… Prince used a large number of photos from the same series by the same photographer to make up his entire series and then altered them only slightly and not in any way that substantially changed their meaning or added any new meaning (he admitted as much.. it was a pretty vapid series).  Prince went too far and unlike his previous works he wasn’t changing the context or content of advertisements, but of the work of another artist… where the context was only changed slightly and the content was not added to at all.  Prince went too far and the lesson is don’t just steal substantial swaths of the work of others to make up substantial parts of your own work without any real alteration… and as always… have something to say.

    1. I think it’s not quite that obvious to many art experts who think that Prince did transform the work significantly and who insist, even, that, the artist’s own testimony aside, the Canal Series did indeed have something to say.

      There’s a whole community of free speech supporters, including the Andy Warhol Foundation, who would even argue that the artist’s spoken intentions don’t matter if the work itself speaks to it’s audience: that is to say, if there is a public benefit at all to the work, it should be protected as free speech.

      Virginia Rutledge has asked me to mention that she and Anthony Falzone worked on an amicus brief, filed by the Warhol Foundation, asking that the court’s decision be turned around based on the very argument I site above. It’s a 57 page document full of art historical and aesthetic information citing the need to protect works like the Canal Series.
      Here’s a link to the Andy Warhol Foundation’s amicus brief: http://www.warholfoundation.org/foundation/44_detail.html?page=1

      1. Ah, but here is the problem I have… Prince was profiting from this work which borrowed so substantially from the work of another artist and while there may be value seen in the work, its not intended value nor, I think, could it easily be called a real public benefit.  Should it be protected?  Sure.  Should Prince profit from it?  In a case like this I would say he should, but only if he hands over at least half of the profits from the sales to the original artist.  After all, if the argument is a public benefit, then allowing the work to exist but not allowing Prince to profit from it or not allowing him to profit while not allowing those he took the work from to profit should fit the bill quite well.

          1. No, they are not. Copyright law, in seeks to protect and to nurture creativity. It does this by allowing authors a “temporary monolopoly” on their original works in order to maximize the incentive to create new works. BUT copyright enforcement risks encroaching on the constitutional right to free speech. This is why copyright is seen as a balancing act between incentive and free speech. Fair use is supposed to add provide a fulcrum that keeps these two rights in balance by allowing exceptions to an author’s monopoly.

            Fair use becomes all the more important when one looks at how long one can hold a copyright. The terms of copyright are currently, the lifetime of the author PLUS SEVENTY YEARS. That’s a long time.

            On top of that, established trademarks can be held onto indefinitely so long as the holders “use” it. This means that the  grip franchises like Disney and Marvel and DC comics hold on the logos, the characters, and other stylings will  continue, in effect, forever.

            So now, try to write a novel with Superman as your main character. Unless you’ve got a lot of money to spend in court, DC’s scary letters will silence you in a hurry. And not just you, mind you, but anyone now and in the foreseeable future.

            This blocks satire, referential works of collage, homages, nostalgia– even, in a case I heard of recently, wedding invitations.

            So, copyright law has a LOT to do with free speech.

          2. Sorry, I just read this.   An individual’s right to free speech is a right that government will not create any laws that hinder an individual’s protected speech. A private actor, DC, sending a cease and desist letter does not involve the government — it is actually DC exercising its freedom of speech.  The letter has no legal authority–it’s just someone claiming to have some legal right.   You are right that Copyright law deals with a temporary monopoly to encourage creative works, so it is a grant of Congress to legislate to foster an author’s rights to a work rather than a prohibition against Congress from doing something.  Fair use comes into play because it is the balance between encouraging authors of original work and encouraging authors of new work. Trademark is also a different area of law — trademark law is not encouraged or prohibited by the Constitution (directly, like copyrights and free speech (bill of rights)), rather it is designed to protect against consumer confusion. The NFL was similarly aggressive with the use of “super bowl” for advertising super bowl parties during the super bowl. I doubt, however, that they would really take anyone to court and actually challenge their use of “super bowl,” because the court could easily say that a consumer would not be confused and think that John Smith’s Super Bowl Party was sponsored by the NFL — and that would deflate the power of the NFL’s cease and desist letters.

  4. When an artist appropriates an image from another artist or corporation,
    s/he is not plagiarizing. S/he is quoting or referencing that artist
    and putting it into a different context. If I wrote and essay and quoted
    an author, book, or other publication, I would put quotations around
    the appropriated words and give credit to the person who originally
    wrote the words. The reader is (or should be) aware that the words are
    not originally the essayist’s words. The same should go for art. The
    artist is merely “quoting” the original artist in their artwork. S/he is
    not trying to pull the wool over the viewers’ eyes nor does s/he want
    the viewer to actually think that the image is solely hers/his. S/he is
    merely starting a conversation.

  5. That is not always the case….what about unknown or little-known artists? Where does the credit or documentation go? On the back of the piece, like APA documentation style? This is a faulty solution….VERY. Many artists who are stolen from will not be automatically recognized as the original author of an image. Think again about this “solution”.

  6. Artist Hank Willis Thomas, in an e-mailed response to this article, says: “I wanted to make clear  that when I appropriated images for the unbranded series I did credit the image to the artists who’s names I knew or could find. For the others I wrote “original photographer unknown” under the title of the work. It was important for me that no one confuse the images as somethingI took. It would ruin the piece. I don’t however think a credit should be on the image that is being appropriated, because that would also ruin the piece. I hope that makes sense.”

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