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Editor’s note: This is the first in a three-part series on the impact of the Patrick Cariou v Richard Prince case.
Go ahead, expect more of these sweaty headlines with question marks in them. Because, with the now rather infamous Cariou v Prince case up for appeal sometime this year, we are facing another deluge of half-informed, and angrily contentious, punditry which will wash over the raw, dry, factual sands of more professional reports like a tsunami of histrionics.
Drowning in the madness will be all those bleeding hearts who root for the little guy, and the sundry art world know-it-alls who root for controversy, along with the fastidious fence straddlers like myself who can’t do right by anyone — and, let us not forget, the stalwart naifs who insist on seeing appropriation as flat out theft.
In the background, lawyers toil away, building sand castles of the driest, rawest, facts they can muster.
It is no wonder that the case has captured the attention of so many. It involves a lot of money, after all, and it pits an underdog, Patrick Cariou, against an art star, Richard Prince, and his giant posse of star-makers and lawyers. It also comes after artists had become cocky, with most copyright infringement cases settling without trial, and often to the mutual benefit of defendants and plaintiffs.
At base the issue is this: Richard Prince’s team must prove that district court judge Deborah A. Batts ruled in error when she decided against Prince’s fair use claim. Patrick Cariou’s lawyer, Dan Brooks, must argue that the ruling did, in fact, use the correct legal standard.
Brooks will file his opening brief by January 25th. Faced with the formidable 135 page appeal filed on Oct. 26, 2011 by big guns Boies, Schiller & Flexner, and a nearly 50 page amicus brief filed on behalf of Richard Prince by the Andy Warhol foundation, plus similar briefs from Google and a consortium of museums (including The Metropolitan Museum of Art, The Museum of Modern Art and The Art Institute of Chicago), Brooks will have to answer five newly refined points of contention.
- That contrary to the first circuit court’s decision, the Canal Zone works that use Cariou’s photos are indeed transformative in every sense established by art history and accepted artistic practice and constitute a fair use of those images.
- That Prince’s “intentions” do not factor into the meaning that his work may or may not have since it is the viewer and the context of a work that give it its meaning.
- That contrary to testimony, Cariou did not lose any marketing opportunities due to Prince’s use of his images; indeed, his lawyers argue, his book prices soared after the initial bout of litigation.
- That the first circuit decision, if upheld, will create a “chilling effect” on future creative work, and thereby will override the very purpose of the fair use exception which is intended to protect free speech and works of social value.
- That, in the Batts decision to protect the copyright holder, Patrick Cariou, the rights of the appropriation artist, Richard Prince were unduly impeded, as her ruling overreached in lumping all of the thirty paintings under one ruling.
In Part One of this Three Part series, I set up a virtual dialogue between Dan Brooks (Schnader Harrison Segal & Lewis LLP.), Patrick Cariou’s lawyer and Anthony Falzone, executive director of the Fair Use Project and a Lecturer in Law at Stanford Law School.
Asked about the pile-on of amicus briefs, Dan Brooks stated that although most of it was predictable, de rigeur, in fact, he thought “the museum’s predictions of the end of appropriation art are over wraught.” He is, however, slightly annoyed, by the newly minted arguments presented in the appeal.
“Normally,” he tells me, “you aren’t allowed to present facts in an appeal that weren’t presented to the district court.”
And yet this is precisely what Prince and Gogosian’s legal teams have done by using quoted text, written after the Batts decision, as testimony, and proffering arguments that were not established in the record. It is a vexing developement for a cerebral lawyer like Brooks who plays by the book.
“They’re trying to introduce a new case. In fact, their brief is postmodern. It questions very basic things like, ‘what is a fact,’ what is a record on appeal, what is an appeal … you know: they just act like there are no rules.”
The rules that Brooks is referring to are those that govern the purpose of an appeal: to determine if a summary decision used correct legal standards, given the arguments and the evidence presented. Only evidence that is already on the record can be used in an appeal. In other words, an appeal is not a whole new case and cannot be treated like one.
On top of that, some of the “new stuff” presented by Boies, Schiller & Flexner comes in the form of a rather surprising line of argument — one which seeks to erase the import of Prince’s sworn testimony that he didn’t mean anything by using Cariou’s photos.
According to Brooks:
“They argue that if you start paying attention to what artists say in their sworn testimony it’s only going to encourage them to commit perjury. So? You could say that about any witness, right? For example, an investment banker … I mean, he’s under oath, he’s supposed to tell the truth. All witnesses are equally accountable.”
Anthony Falzone, who worked on the amicus brief filed by the Andy Warhol Foundation, admires Dan Brooks’ “straight shooting and clear focus,” saying that in round one, Brooks “knocked it out of the park!”
But he has a very different view — a postmodern view indeed — of what can account for transformative use and he’s very adamant that it can’t be the artist’s intentions.
“I don’t think that the meaning of a piece of art should be determined — you have to look at the face of the work, and just say ‘well, whatever the meaning is, how similar is it to whatever meaning is contained in the original?’ and then determine if there is a difference.”
He goes on to clarify, saying think about “2LiveCrew in v AcuffRose; “they didn’t ask 2LiveCrew what they intended, they made the assessment by listening to the song. It’s just common sense inquiry. That’s what the Supreme court told us to do back in 1994 (when that case was decided).”
A Matter of Law
Brooks tells me that Anthony Falzone and Boies, Schiller & Flexner, have got the wrong end of the stick with the 2Live Crew v AcuffRose case. It was remanded to a lower court which then decided in favor of 2Live Crew because they’d already stated their intent to parody. This intent, communicated in e-mail was part of the record.
“It’s an affirmative defense,” says Brooks.
This is a legal term referring to a type of defense where the responsibility for proof falls to the defendant.
“So it’s a two step thing,” he explains. “First the defendant has to say, ‘I was doing a parody.’ Only then does the court go on to say, ‘Well let’s see if this is reasonably perceivable.’”
“But when the defendant says ‘I’m not doing a parody.’ No court is going to say, well let’s see if he is anyway.”
Bottom line: if I claim fair use, I must prove it.
As Brooks puts it, “It’s not the role of the court to ferret out affirmative defenses that the defense has not raised.”
“Reasonably perceivable” is a point of contention in a lot of fair use claims since that 1994 decision used the phrase. Brooks’ point is that it doesn’t matter what the public thinks, it can’t matter because it isn’t the role of the court to decide that.
“Parody,” he says, “is a question of law. It’s not a question of public opinion. The court’s not going to take a survey to see what’s apparent to the man on the street.”
“Thomas Forsythe said, ‘I’m making fun of Barbie,’ and he wrote about it a lot — his intent was clear. So then Mattel did a survey and found that some people did not see it as a spoof: the court said we don’t care. This is not a popularity contest where you take a vote. It’s a matter of law.”
I asked Anthony Falzone if he didn’t think that, without artist’s testimony, we’d be faced with a bigger problem. Why wouldn’t the courts just throw up their hands and say, “Well then, to hell with this transformative use thing?”
After all, it’s not specifically written into copyright law, but instead comes, itself, from a an article, Toward a Fair Use Standard, written by judge Pierre N. Leval, for the Harvard Law Review in 1990. In that article, Leval sets up a test for fair use:
“I believe the answer to the question of justification turns primarily on whether, and to what extent, the challenged use is transformative. The use must be productive and must employ the quoted matter in a different manner or for a different purpose from the original … If … the secondary use adds value to the original — if the quoted matter is used as raw material, transformed in the creation of new information, new aesthetics, new insights and understandings — this is the very type of activity that the fair use doctrine intends to protect for the enrichment of society.”
Falzone doesn’t think “the t-word” will disappear. “You still have to refer to social value,” he says, going on to explain that in order to attach substantive social value to a derivative work, you still have to talk about the balance between the incentive to create original works on the one hand and the contribution to society of the derivative artist’s free speech. He continues:
“And transformative use is a good tool for that. We are talking about what sorts of things have social value. So the T-word is useful because it speaks to adding creativity, and different meanings. It’s one way, not the only way to address the social value issue.”
Stay tuned for Part Two.