Prince v Cariou: How Much Does Fair Use Co$t?

An overlay GIF of one of Richard Prince’s “Canal Zone” series with the author’s De-appropriation. (via the web & the author)

I’ve been brutal, lately, in my assessment of the Prince v Cariou appeal, insisting that arguments about the social value of art don’t really work in court, suggesting that the notion of “transformative use” is something vestigial that will fall away soon and not be missed.

You see, I’ve had a dream of legal reform which would include the epiphany I’ve had: that money measures the consequences of infringement, and that social value is to be assumed when it comes to any creative endeavor, no matter how weak — no matter how flat, ugly, stupid, spiteful, shallow or insipid.

No matter if the collectors are dupes, the artist himself, at once bloated with pride and benighted — none of that can or should be weighed in a court of law: all art brings information into the world and should be, not only tolerated, but protected.

In this dream I have, fair use would be easily determined: did it take money from the author’s pockets? If the answer is no, then the author’s copyright has not been infringed. Fair. Use.

My dream is, of course, impossible: fair use has a long history and transformative use is so embedded practice, that it would take decades of neglect to make it fall free. What is more, the lazy, duped and complacent world cannot even THINK of letting go of this dead, useless, ungainly organ. It hangs heavy and stupid from the body of the law, getting in the way of ju$tice.

Well I am now eager to add the rest of copyright law to my dream pyre: Did the appropriator act in “bad faith?” Honestly: so what? And who’s is a judge to determine the “purpose and character of the use” of an image? How much of the original image did the appropriator use? Really? How much? How long is a string? For god’s sakes, give it up, Socrates.

The old old old Copyright law with its old old old values is a machine that needs to be replaced. “Originality” is not only hard to evaluate, it’s over-rated and quaint. Spin, wit, depth, timing, craft (even!) and wall power, honestly — quite honesty— matter more. But we aren’t ready for the legal equivalent of the electric car, so we’re stuck with this ancient law.

Below*, for your review (once again) is section 17 U.S.C. § 107 which was, in its day, an attempt to create an exception to the copyright law’s restrictions to free speech.

Notice, please, that the free speech protected by the law cover a very wide range of use, but that most contemporary art cases dwell on “criticism” and “comment.” I want this to be noted because the Prince team, in the Prince v Cariou appeal, is arguing that direct, intentional; commentary on the original is not necessary. One should think about what that leaves and how broadly the confines of the law must be interpreted to allow that. Are we willing, essentially, to remove the very heft of the words “criticism” and “comment” but NOT to let go of transformative use as a measure of these things? Why is that?

And what do the Prince legal team propose as the measure of Canal Zone’s transformative use, if not direct criticism or commentary? THINK about this one, folks: they are actually claiming that we know that Richard Prince’s Canal Zone series says something, speaks to viewers, because they are willing to pay lots of money for these works. Period. That’s the argument. And THAT I’m not buying.

The Prince defense seems to imply that if  “comment” and “criticism” are accidental to the artist’s intent and can be solely grounded in viewer reactions to the works, what we have as a measure is money.

Some quotes from various court documents:

Page 4 of the Prince Brief 8/18/11:  “In this case, there are objective facts that establish the acclaim Prince’s works have received; the audience they attract — which is very different than Cariou’s; the prices they command, which reflect the value that society has placed on these works.”

Page 43 of the Andy Warhol Foundation’s Amicus Brief: “The combined value of his thirty paintings currently totals millions of dollars. See A-1254-55 at 323:8- 325:10. There can be little dispute that a substantial, if not overwhelming, portion of that value is due to the creativity and expression Prince added and his artistic reputation.”

It is the inelegance of that argument that bugs me. The idea that we must retain our quaint, lofty notions of transformative use, and chatter about criticism and commentary when what we are protecting is free speech in ABSTRACT — as something the viewer will find there, or not. And we are proposing to measure this in dollars.

Simply grafting these values onto a monetary scale solves nothing. Where money measures the message, money, the aesthetic, the value and the legacy, we’re no longer asking, “Did the artist who used the original images intend to say something worthwhile?” We are actually asking, “Did she sell them for great wads of loot? Because, if she did, then, clearly, they held great value and are greatly appreciated and spoke to the masses.” What a mess.

So I have this dream: in it, we get rid of the lofty notions and assume that all art is transformative and should be protected as free speech. Isn’t’ that lofty enough? Meanwhile we keep our eyes on the money just the same as we were doing. We ask only, “Did artist B take money out of the pockets of artist A?” If he didn’t, then he did not infringe.

Remember, it’s only a dream. I KNOW it can’t happen. We’ll graft a few thousand caveats into practice in order to MAKE it about the money, all the while talking about free speech.

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* FYI: 17 U.S.C. § 107

Notwithstanding the provisions of sections 17 U.S.C. § 106 and 17 U.S.C. § 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include:

1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
2. the nature of the copyrighted work;
3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
4. the effect of the use upon the potential market for or value of the copyrighted work.

The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.^[1]