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Editor’s note: This is the final 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 and the second on January 17, 2012.
‘Transformative use’ is just mucking things up. That’s what I think.
Providing a pivot for the Cariou v Prince case and the only real point of interest no matter what the pundits say, transformative use, instead of the fog-clearing test that it was supposed to be, has become the main particulate in a legal fog of war that has lasted three years now.
Thus far, the dueling Cariou v Prince briefs have added new certainty to my theory that transformative use is a singularly unhelpful notion.
What is Transformative Use?
Set out in a 1990 Harvard Law Review article by judge Pierre N. Leval, the test for transformative use was supposed to add clarity to evaluations of fair use defense claims with a set of simple questions:
“Is the work transformative? Does it add value to the original? Does it use the quoted work as raw material, and transform it in the creation of new information, new aesthetics, new insights and understandings?”
I asked Virginia Rutledge, who co-authored the Andy Warhol Foundation’s amicus brief, what she thought.
“I think you’re probably right about transformation,” she said, “It’s obviously been the basis of a lot of internal debate and scholarship about what exactly it means.”
So why, I asked, do we keep wrestling with transformation? Why not just ask one question, “Does this usurp the original artist’s market?” and be done with it?
“Exactly,” she says. “To me, with appropriation art — even the purest appropriation art — the question answers itself.”
I point out that many of these cases wouldn’t even go to court, then, if we focused solely on the market, and she seems willing to consider that too:
“A lot of people who work between fine arts and copyright think exactly that. They think it’s absurd to say, ‘I’m buying it because it’s Sherry Levine and not Walker Evans.’ I hate to say it’s a no brainer, but it is a no brainer.There’s no art collector in the world that would buy one over the other because it’s a substitute.”
And yet, it is the deeply ironic case that both the legal teams of Richard Prince & Gagosian and Patrick Cariou, see the big T as a key player on their own side. In fact, everyone is eager to quote Campbell v Acuff-Rose, hoping that the 1994 Supreme Court’s understanding and application of the tests of transformative use will provide final word.
The Artist’s Intent
Quick Review: The case is named for Luther Campbell, of 2 Live Crew who’s rap parody of Roy Orbison’s rock ballad “Oh, Pretty Woman” caused Acuff-Rose Music (owners of copyright) to sue them for infringement. Campbell, et al pled fair use, stating the song was a parody. Acuff-Rose stated that the commercial nature of the record precluded the fair use defense.
When the Supreme Court wrote its decision on the Campbell v Acuff-Rose case, it held that, “The more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.” Thus a commercial parody could qualify as fair use.
Though the case was remanded and settled in appeal, the Supreme Court’s guidelines offered much optimism to fair use advocates. It also put transformative use front and center as a balance against commercial use. In a way, these two factors, transformative use and commercial use are now pitted against each other.
And that provides a good grid to examine the Prince v Cariou case. The Prince side claims that the Canal Zone works are clearly transformative of the original Yes, Rasta portraiture. What is more, since Campbell states that “The threshold question when fair use is raised in defense of parody is whether a parodic character may reasonably be perceived,” fair use advocates are now holding that Prince’s transformative use of Carious‘ photos as “raw material” is so head-wackingly obvious, that surely it can be reasonably perceived by any viewer. And this, they contend, is the only relevant test.
Judge Deborah A. Batts didn’t think so. She ruled against Richard Prince because he stated outright that he meant nothing by using the specific Cariou photos that went into the Canal Zone series. Batts took that statement to be a clear-cut confession that he’d intended to add no meaning at all to the images he’d lifted from Cariou. How, I asked Rutledge, will the appeal overcome that?
“Very easily,” came the quick reply, “Because the test is not the intent of the artist; the test is the reasonable perception of the viewer.”
On the other hand, Dan Brooks thinks it’s pretty clear that the Richard Prince team is trying to leverage this one sound bite, “reasonably perceived” into a full fledged claim to transformative use. And he’s not buying it. In the brief filed yesterday by the Cariou team, Brooks lays out this argument:
“In every case relied upon by appellants, the defendant claimed — sometimes pre-litigation, but always in the trial court — that he or she subjectively intended to create a satire or parody; only then do courts analyze whether the claimed parody or satire is reasonably perceivable. In none of those cases did a court examine whether a comment was reasonably perceivable when the defendant expressly disavowed any intent to comment, as Prince did here.”
Brooks also pushes from the other end; he thinks it’s pretty clear that the commercial nature of Prince’s Canal Series far outweighs any hint of transformation in the relevant legal sense. I quote again from the Cariou brief:
“It would be difficult to imagine a starker example of ‘commercial exploitation’ than the marketing of Prince’s Paintings through advertisements in seven different newspapers, five depicting Cariou’s Rastafarian images; the prominent use of Cariou’s images on 7,500 announcement cards and the Gagosian Gallery website; and an exhibition catalogue, claiming copyright ownership of Cariou’s images and containing James Frey’s name on its title page in order to elicit Google hits, all targeted at an audience of celebrities and billionaires having ‘proof’ that they would ‘BUY’ works of art hastily thrown together by Prince without much thought, resulting in proceeds of over $11 million plus additional bartered art and the sale of the leftover announcement cards to a poster company, likely inducing further infringement of Cariou’s copyright.”
As my readers know, I have had my doubts about how truly pivotal or even interesting this case is. To me there is only one truly colorful issue in this case, Prince’s statement that he meant nothing by using Cariou’s particular images — which I agree with Dan Brooks, really threw a wrench into his fair use defense.
It has also caused the Prince legal team to draw up some very avant guard arguments, one of which is that the artist’s intention doesn’t matter when assessing the “use and purpose” of a work; what matters is the added meaning that can be reasonably perceived.
As stated in the Richard Prince brief:
“There is no sound policy reason why fair use should be limited solely to comment or criticism. In Campbell, the Supreme Court emphasized that what makes a work transformative is that it ‘adds something new, with a different purpose or different character, altering the first with new expression, meaning or message.’”
But, because Prince claimed he meant nothing, the argument made here seems to boil down to a claim that intent or not, there IS a new message in the Canal Zone works just and solely because we perceive one.
It’s the “anyone can see” argument, and it’s not pure hogwash: in a footnote to Campbell, the supreme court added, “We note in passing that 2 Live Crew need not label their whole album, or even this song, a parody in order to claim fair use protection, nor should 2 Live Crew be penalized for this being its first parodic essay. Parody serves its goals whether labeled or not, and there is no reason to require parody to state the obvious (or even the reasonably perceived).” Hmm … take out the word “parody” and replace with “added meaning.”
If the Prince team manages to convince the court that Prince’s sworn testimony means little or nothing, but that, rather, the “reasonable perception” of meaning — as measured in their brief largely (and with oblivious irony ) by the works’ commercial results, THEN things really will get interesting.
Maybe the court will, finally, throw up it’s hands and say, “Right, who bloody NEEDS to blather on about meaning? Let’s just talk money.” That’s what I’m rooting for. Meaning? Meaning either comes with the baby or gets tossed out with the bathwater. It’s there or it isn’t.
The only other interesting factor in this case is the draconian remedies which Judge Batts rained down on Prince and Gagosian — and those, surely, will be revised in the continuing court process.