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.
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The part about what’s “reasonably perceived by the viewer” makes me think of the time I saw a guy I knew walking out of a Warhol exhibition at the MCA in Chicago, saying, “Those poor people in those car crashes!”
Not a dumb guy, but I guess not everyone can be expected to notice transformative use in a work of art.
Well, how transformative was what Prince did? Not very.
Awww hell no. It’s art for bumbling schmucks with a legal argument to match. I admire a lot of Prince’s work, but he’s really shot himself in the foot here.
Agreed. Much of his earlier work was really great. This stuff even he admits is vapid and meaningless. Also.. huge difference between taking one or two images to make a part of a series rather than doing as Prince did and take your images for all of your series from one artist.
The Canal Series actually uses work from other photographers too. Thought these were not as central, especially to the PR for the series.
I know our justice system exists to serve the interests of the 1%, but defining fair use solely in relation to the market is problematic.
Also, I hate to nitpick, but this is one of my major pet peeves: The past tense of “plead” is “pleaded”, not “pled”. “Pled” may be in common use in America, but it’s a false conjugation.
You’re missing an important point: the “4 factors” of the fair use test are neither mutually exclusive nor exhaustive. Rather, they are the product of centuries of case-by-case determinations by courts trying to balance the limited statutory right of the copyright holder against the appropriator’s constitutional right to free expression (including the right to express himself by using copyrighted work).
So, first, the “expressive character and purpose” of the appropriating work (which must quite obviously include its cultural value as a piece of creative expression or, in other words, how “transformative” it is) is, thanks to the First Amendment, an inescapable consideration. But it should be obvious too that the more original and creative that appropriating use is, the less likely it is that it will have an impact on the market for the appropriated work. In other words, You may be right that the 2 issues are virtually equivalent in this case: if one is not a substitute for the other in the market, then it seems natural to infer that it’s been transformed into something else entirely. In fact, Judge Batts seemed in her opinion to state that Prince’s work had indeed displaced the market for Cariou’s — that a gallery owner considering a show for Cariou’s works backed off from going through with the show for Cariou because “she did not want to exhibit work which had been ‘done already’ at” in Prince’s show at Gagosian. (Slip op. at 6-7).
It seems too, however, that Cariou’s legal team has backed off of that argument — that, perhaps, the gallery owner’s testimony does not support Judge Batts’ conclusions regarding the reasons for the gallery owner’s decision not to show Cariou’s work. If I’m wrong about that, Cariou’s legal team is making a huge mistake in getting mired in the much more difficult job of judging the extent to which Prince’s work is creative and original in its own right.
But you have to remember too that legal decisions are made on a case-by-case basis. ( Which is one reason why the outcome in this case will not as a technical legal matter decide the near-term fate of most appropriation art; the problem is that the larger market does not act always make decisions for solely technical legal reasons, and as a practical matter if Prince loses few gallery owners will want to risk the increased likelihood of legal costs arising from showing any appropriation art.)
But my larger point is this: courts may well find in a different case that an appropriating work’s expressive nature and purposes are so important that it constitutes a non-infringing fair use EVEN IF IT HAS AN IMPACT ON THE MARKET FOR THE ORIGINAL. The most natural kind of situations that would arise in which these two factors do not cut the same way are really effective instances of criticism or parody — where the appropriating work so effectively diminishes the perceived value of the original that it even kills the market for it.
We live in a society that so values free expression that we don’t want to foreclose that possibility. So we’ can’t ignore the question of how “transformative” the appropriating work is. It’s tough to judge the creative value of a given work, and it strikes many as absurd that courts do so. But courts judge things in the world all the time that judge’s and jurors aren’t trained to judge They do so by giving the parties to the lawsuit an opportunity to present evidence. So the evidence of critics and economists and gallery owners are all relevant to Cariou’s case. It may be hard to weigh it all, but there’s no escape from the need to do so.
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