Cariou v Prince: The Money Issue

Editor’s note: This is the second in a three-part series on the impact of the Patrick Cariou v Richard Prince case. The first post was published on Friday, January 13, 2012.

I have long suspected that all the press attention garnered by the Cariou v Prince story, with its heady mix of celebrity, power and money has caused the importance of this case to become magnified in the eyes of courtroom outsiders.

It makes for great copy. In the eyes of contemporary art aficionados, it looks like their bad-boy Robin Hood is being hung out to dry, while in the eyes of photographers (and other powerless artists), it looks like David has killed Goliath. So it’s easy to swallow all the art world big wig hand-wringing about how pivotal the case is. It looks pivotal to us.

You know who else it looks pivotal to? Answer: Those who have a stake in the outcome of this appeal, namely galleries, museums, dealers and collectors. Everyone’s attention has been captured, but it’s easy to confuse the gossip with the genuinely important facts.

Que the heavy orchestral music. Scene shows only a close up of the last page of a court order with a few lines and a signature.

It was March 3rd, 2011 when Judge Deborah A. Batts signed the bottom of a typed page which was about to raise hackles throughout the art world. In a decision with consequences to Gagosian Gallery, Richard Prince, collectors of Richard Prince’s work and possibly future artists, along with the the soon to be quite pleased, Patrick Cariou, the judge had ordered:

“That, pursuant to 17 U.S.C. § 502, Defendants, their directors … and all persons in active concert or participation with them, are hereby enjoined and restrained permanently from infringing the copyright in the Photographs, or any other of Plaintiff’s works, in any manner …

That Defendants shall within ten days of the date of this Order deliver up for impounding, destruction, or other disposition, as Plaintiff determines, all infringing copies of the Photographs, including the Paintings and unsold copies of the Canal Zone exhibition book …

That Defendants shall notify in writing any current or future owners of the Paintings … that the Paintings infringe the copyright in the Photographs, that the Paintings were not lawfully made under the Copyright Act of 1976, and that the Paintings cannot lawfully be displayed under 17 U.S.C. § 109(c).”

Crescendo. Screen goes dark.

The Prince team, in asking that “the judgment of the district court should be reversed and summary judgment entered for Defendants” or that “ the judgment should be reversed and the case remanded for a new determination on the issue of fair use” has a lot at stake. And only a sliver of that has to do with all the sweat and tears that went into that masterpiece. It can be argued that perhaps more of the stake is in the artist’s market.

Estimates of Richard Prince’s and Gagosian Galleries potential losses are huge. In their appeal, Gagosian claims that they have “invested $434,730.47 in marketing the works.” On top of this,  there will also be some business losses involved in the need to repair relationships with buyers. And then there are the relationships in general: the large galleries and their artist pets, along with those “insiders” who may feel obliged to cultivate friendships, all have solid reason to view this particular case as a set-back par none.

In fact, the Prince legal team’s rather whiny appeal lays out the case that the injunctions against the defendants are so outsized that “the balance of hardships tips against a permanent injunction.”

Prince’s brief is appropriately hefty. In support of his claim of fair and transformative use, the document contains a veritable history of contemporary art in the form of a section called “The Background of Appropriation Art” which also contains a survey of Prince’s art career.

A good deal of the arguments addressing the fair use issue, rest on a claim that the Canal Zone works are a parody of Cariou’s “classic portraiture” in Yes, Rasta (though there are also a few lame nods toward the old “different media” argument). It is in this part of the brief that we are introduced to those new citations that so vexed Patrick Cariou’s lawyer, Dan Brooks.

Readers of Part One in this series will recall that Cariou’s lawyer, Dan Brooks was put off by the inclusion in it of new testimony and new arguments that did not come out of the original case record. Some of this, perhaps a good deal of it, will be deemed impermissible if Mr. Brooks has his way.

What’s New

He sites two “authorities” used in Prince’s appeal, who present statements  that are “not on the  record” and not taken under oath.

One of them is Adam Lindemann, whose quotations in the appeal come from an article he wrote for the New York Observer, after the Batts decision, and the other is Nancy Spector, deputy director and chief curator at the Guggenheim who’s testimony, like Lindemann’s comes in the form of quotations, from publications: not taken under oath.

Of Specter, Brooks marvels, “They (the Guggenheim) wanted her as an expert witness, but the judge said it was too late. They could have appealed that but they’re using her anyway — they’re quoting some book she wrote about Richard Prince — also not in the record. All these articles they quote are not in the record. It’s all new stuff.”

Of Lindemann he has a great deal more to say:

“He has a vested interest. He bought one of his [Prince’s] paintings! Why listen to him? They don’t disclose his self interest and try to pass him off as an art critic. He spent $1.1 Million. And he bought it after the lawsuit. It was an investment. He knew there was a lawsuit and he bought it. He was hoping it would turn out to be fair use and he probably thought the price would go up with all the controversy.”

It is true, the brief does describe Lindemann as “art critic and collector of contemporary art” without, to my eye, disclosing the fact that he owns a Canal Zone painting.

Brooks takes issue with the claim to parody as well. I mentioned some of his qualms in Part One, regarding the fact that fair use must be proven by the defendant and not the court. Stating after a summary judgement has been made that actually you were doing a parody doesn’t (in past cases) hold up because it isn’t in the original record and, in Prince’s case, his sworn testimony to the opposite is.

But Brooks has a smaller fish to fry. And a funnier one.

The Chilling Effect

In his 2011 New York Observer article, “My Artwork Formerly Known as Prince,” Adam Lindemann quotes Cariou as saying, “[Prince] made them look like zombies, it’s a racist piece of art.” This is used to support the argument that Prince’s works cannot and would not have usurped Cariou’s photographs in the market place (A really good argument if they can make it with evidence that will not be tossed out).

But Brooks says,“It’s double hearsay when he’s quoting Cariou, because they can’t know that Cariou said any such thing to him [Lindemann], and they’re quoting Lindemann’s article.” Meaning, I take it, that they don’t even have Lindemann’s sworn testimony, so what the Prince defense team has with Lindemann is a quote of a quote. By a guy who has a vested interest.

Adam Lindemann is married to Moshe Dyan’s granddaughter, Amalia Dyan, of Luxembourg & Dayan, a gallery which had a piece by Richard Prince “made especially for the exhibition,” Grisaille [PDF], which ended January 14th.

The website, How To Spend It did a colorful little piece about Lindemann, referring to him, not as an art critic, but rather an “investor entrepreneur.”  (Lindemann describes himself as a “writer and collector.”) A call out near a photo of Adam Lindemann and Amalia Dyan at their posh Montauk home reads:

“Lindemann thinks big in business. With his advisor wife’s council, he applies the same strategy to his art collection.”

The article also mentions his purchase of one of the Canal Zone paintings two years after the show. “Being smart,” HTSI quotes Lindemann, “means being smart on the art and smart on the money.

Maybe that’s why Adam Lindemann bought Greg.org’s Canal Zone Richard Prince Yes, Rasta book, a summary of the case gleaned from court clerk’s records.

“Lindemann wanted to send me the book,” Dan Brooks tells me, “because it would be worth more money if I would sign it. And he wanted Cariou to sign it.”

The fate of Lindemann’s tiny $1.1 million-ish bit of the Prince pie is at stake. So is its future auction price. And there are seven others out there in the well-heeled world who have similar Canal Zone trinkets at stake with similar newly dubious auction estimates hovering in their futures. Along with Gagosian’s $435,00 plus for marketing, I’d say the Batts decision likely did have a chilling effect all right: down the spines of a lot of interested art— um — lovers.