Richard Prince’s “Graduation” (2008) (right) was widely cited throughout the Cariou v. Prince case (shown here side-by-side with Patrick Cariou’s original). (image via Fordham’s IPLJ)
Contrary to what we thought, the art law blog Clancco has found out that the infamous Cariou v. Prince copyright case is far from over. According to the blogger:
The American Photographic Artists, the American Society of Journalists and Authors, the American Society of Media Photographers, the Graphic Artists Guild, the National Press Photographers Association, the Picture Archive Council of America and the Professional Photographers of America have filed a “friend of the court” brief in support of Patrick Cariou. (pdf version)
The brief takes aim at the Warhol Foundation’s brief (PDF) in support of Richard Prince (emphasis mine):
Amici submit this brief primarily in opposition to the amicus brief filed by the Andy Warhol Foundation and other elite foundations and museums who do not represent the views of working artists.
The organizations involved in the “friend of the court” brief represent roughly 45,000 members and 100 companies in the fields of photography, the graphic arts, and media.
Their brief continues with this criticism that continues to pit the 1% against the 99% of artists:
The standard articulated by the Warhol Foundation would create an unwarranted safe harbor around a small coterie of well-connected elite artists who sell their works for extraordinary prices, at the expense of the greater community of working artists. Instead of resorting to an examination of hypothetical and elitist views, rather, what should determine whether there is a “transformation” in the fair use sense here under the reasonable person test should be based on the application of common observation skills to determine whether the appropriating artist, in the course of committing copyright infringement, has made something which is beyond the economic goal of the Copyright Act to compensate the original authors and protect their right to control who makes copies and derivative works.
And again:
The Warhol Foundation proposes a standard whereby seemingly identical pieces will not be treated as unexcused infringements, but will be distinguished by a series of expert reports and costly testimony. These increased costs magnify the harm to the original artists; who frequently have no choice but to stand by while the copyright in their works are violated brazenly, as the costs of litigation outweigh any potential remedy the legal system can provide currently.
The question again is: what is fair and transformative use? The brief emphasizes the double standard in the case and how the organizations filing this new brief are concerned for creatives who don’t have access to wealthy collectors and limitless funds for legal cases:
Simply because Prince has access to more lucrative avenues of distribution and was able to exploit the value of Cariou’s aesthetic vision to his own economic benefit does not entitled Prince to a fair use defense. Rather, it counsels that Prince should have availed himself of the standard licensing market in order to put Cariou’s photographs to his high value use, while compensating the original creator or finding an alternate source for images of a similar nature if Cariou declined to issue a license.
And the clincher, IMO:
This is where the Warhol Foundation’s argument fails of its own weight. It argues that Prince’s works have new meaning and thus are sufficiently creative so as to be considered a new work of art by the elitist audience for his “art.” But to do so is to admit that Prince has created derivative works that Cariou alone has the right to create and authorize. “Transformation” for purposes of the derivative work right and “transformation” for purposes of “fair use” cannot mean the same thing without more, otherwise the Judge-made “transformation” analysis would usurp Congress’ use of the words “abridgment, condensation, or any other form in which a work may be recast, transformed, or adapted,” in the Copyright Act would be meaningless and eviscerated. Amici do not believe the intent of the Second Circuit was to do so, but the Warhol Foundation’s position, if accepted, would inexorably lead to that result. With all due respect to the Second Circuit, it is not permitted to override an Act of Congress in such a manner.
[…]
A change of context, standing essentially alone, thus does not qualify as a fair use. Consider, for example, a translation into a different language: the context is changed, it is slightly altered because no translation is entirely literal, it has different meaning to a different audience, but it is not a fair use; rather, it is an infringing derivative work
This is an evolving story.
The crux of the argument is this , the Warhol foundation
is actually trying to override Congress without understanding that the fair use argument is not valid in the same market place. This kind of policy would even conflict with Andy’s vision. Although Warhol used images
found in Pop culture- he did not infringe on the market or expression of another artist. The market place is part of the 4 prong test and does not pass. This would leave every other artist sitting ducks for any home grown artist celebrity to swallow anyone’s work, no matter what proportion of the original is appropriated. And in the appellate ruling of Cariou v Prince, the judges did not even apply their own judgement correctly.. “we consider the proportion of the original work used, and not how much of the secondary work comprises the original.” The proportion of the original Cariou exceeded a permissible adaptation of the work. This is not to say that no artist can reference anyones work- the art world is so confused with art and law– that is why we are always taken advantage of.. I wish more of us artists would get involved with the law and understand what authorship and how it is applied in our courts, otherwise the lawyers are literally struggling to figure it all out for US!
This will finally make its way to the Supreme Court. I am happy for this go be ongoing so long as we, and the courts, remain unclear as to what purpose it serves to keep “transformation” as the key to unwrapping fair use claims. I see the entire history of fair use tipping toward increasingly vague “transformations” and away from the four original factors of measure for fair use: 1) the purpose and character of the derivative use 2) the nature of the original 3) the proportion of original used in the derivative use 4) the effect of derivative use upon the market for the original
I continue to think that the concept of “transformative” use, although it seemed, at first, like a shortcut to determining social benefit, has proven to be a distraction, a slippery slope, and an unfortunate detour.
Were I a judge, I’d be very happy to give very little weight to “transformative” use and way more weight to “effect on the market” (or ANY of the other four factors! Because any time anyone traces, spits upon, re-frames, or re-locates an item they transform it and courts have to scramble to weight the import.
I would especially be likely to give it little to no weight for the simple fact that despite anything that can be found in it of artistic merit after the fact, Prince has admitted the work was intentionally meaningless. His original intent is, to me, at least the most important factor when it comes to artistic merit. Sure, there is always more to be found in a work than the artist intends, but that doesn’t mean intending no meaning in the first place is as valid in terms of fair use as intending meaning in terms of fine art and especially when the transformation of the original work is mostly so minor.
So hypothetically I can paint a picture blue but I had the ‘intention’ to paint it red, so the audience needs to accept my proposal that the painting is actualy red. Anyone can use pastoral words to manifest an intention.
but that doesn’t make it legal in the Federal Courts.
Sure you could. Its highly unlikely anyone would fail to think you a pretentious twat for doing so, but you could definitely do it. However, if you fail to have any intention of artistic merit in the work(as Prince admitted), then I for one don’t think your work would fall under fair use (if you were incorporating the work of another artist as liberally as Prince did), no matter what others can find in the work after the fact.
this is not a fair use issue , read my first comment- there are 2 prongs that dont pass the test- 1) the market and 2) the quantity of ‘protected expression’ that is derived from the original Cariou. Anyway you spin it, even Warhol would call a spade a spade. Also this is not a case regarding artist merit.. by the way.
so the take away here is:
everything on http://www.richardprince.com/ is fair game to muck with; so, if I was to take every image there and put “dick prince is a thief” on them in an ugly font I can call them transformed, and sell them as my own ‘original’ works…
cool!
and these folks are busy drumming up press for my show with their little legal battle. excellent.
This whole case seems to break down pretty simply between artists who don’t want their own work stolen by other artists with better careers and more connections with no recourse and people with a fiscal interest in art who don’t actually create art themselves and who don’t want to see a blue chip artist’s work devalued in the least by his theft of the work of other artists of less monetary value to the establishment.
That’s pretty well put, Dan. That’s an issue which is newly highlighted by this specific case.
Despite nuances, we have become comfortable with viewing copyright law’s fair use clause as an attempt to balance incentive to create ( through author privilege) with freedom of speech ( fair use). That balance is hard enough to fathom in abstract w/ out the complications of class. The emotions attendant in this particular case run very high.