READERS PLEASE NOTE:  IN THE ORIGINAL VERSION OF THIS BLOG POST I INCLUDED IMAGES OF THE RICHARD PRINCE PHOTOGRAPHS  AT THE CENTRE OF THE CASE.  These are widely published and included in many discussions of the appropriation issue. However, the images were all removed  from the post.  I find it very interesting that it is not possible to discuss the issue using the examples of the images which caused the problem in the first place.

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In the discussion which follows, a small icon appears at the points where I reproduced the images, with a brief reference attached. However the icon does not lead to anything. The use of these images  should be regarded as Fair Dealing for the purposes of review and analysis – see the discussion below. However … if you want to know more about what Prince actually did, you’ll have to search through the many online images which are freely available, though many are without context or explanatory discussion. For reproduction of the main images at issue go to: https://hyperallergic.com/107150/the-art-of-art-lawsuits/

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Appropriation art takes a piece of existing art work, borrows and transforms it. The end product is obviously not a copy, since the purpose of the artist is to create something new and notably different. No-one would mistake the new piece for the original although it will be obvious what it is.  All those famous comic pictures of the Mona Lisa with a moustache, or in disguise, are a commonplace example. How far can appropriation art go and still stay within the boundaries of the law? This question has been tested recently especially with regard to the works of Richard Prince.

In US copyright law a Fair Use test exists to determine the legitimate re-use of someone else’s works including photographic works. It consists of a number of elements which singly or in combination can give protection to someone wishing to re-use another’s work.

There are four factors in the test. Only a Federal Court judge can give a definitive answer on whether a particular use meets that test. The four factors are:

•             The purpose and character of the use
•             The nature of the copyrighted work
•             The amount and substantiality of the portion taken
•             The effect of the use on the potential market

See http://fairuse.stanford.edu/overview/fair-use/four-factors/

In 2000 French photographer Patrick Cariou published a book, Yes Rasta (Powerhouse) about the lives of Rastafarians.  His striking photographs were the main element of the book.

In 2008 artist Richard Prince created a series of 30 art works which were based on Cariou’s paintings for a show, “Canal Zone”, at New York’s prestigious Gargosian Gallery. In 2009 Cariou brought a copyright infringement suit against Prince, his gallerist and the publisher of the exhibition catalogue. In March 2011 US District Judge Deborah Batts ruled against Prince and ordered the defendants to destroy remaining copies of the catalogue and the unsold paintings which were closely based on Cariou’s photographs.

The decision was overturned on appeal in 2013, except for five paintings which were referred for further evaluation of claims of Fair Use.

The argument in favour of Prince was supported by the Andy Warhol Foundation for the Visual Arts. Along with the Robert Rauschenberg Foundation they argued that the intellectual content and aesthetic meaning of a work of art is not always visible outside of art-historical context. The court decided that the case would depend on whether or not a reasonable observer would find Prince’s works to have been transformative, and thus protected under Fair Use. Because the case for the five paintings was settled out of court there was no legal ruling on them which has been seen as a loss for those seeking clarity in the operation of the law with regard to appropriation art.

A Report on the Settlement appears in Art in America magazine.

In the latest copyright suit against Prince, photographer Donald Graham has claimed that Prince used a photograph of a Rastafarian which he took. The photograph was used in Prince’s 2014 Gargosian exhibition “New Portraits” which present prints of other people’s Instagram posts with comments.

This case differs from Cariou’s in several respects. In terms of the fourth element, the market infringement test, Cariou had made no fine art prints of his work and had not exhibited them as prints. But in the Graham case, the photographer has ONLY sold his work as prints and has never licenced the copyrighted photograph or made it available for any commercial purpose other than sale to fine art collectors. Another element of Fair Use relates to whether or not it has been used for commentary. In the present case the new photographs may be thought to be commenting on the way social media is intersecting with photography.

Another factor is the amount of copyrighted work taken. In this case, the photograph uses almost all of Graham’s image. There is a change in the framing and presentation. Moreover, the image, and the others appropriated for the show, is a striking and compelling image. It is not just the random snappings of amateurs.

However others disagree. Conceptual and appropriation art cannot be judged only on its formal and aesthetic qualities. One NYU law professor says it is “the art-law equivalent of Zombie Formalism”.

[Zombie Formalism is a new art movement based on the long discarded principles of Clement Greenberg. For a discussion see an upcoming post].

Also the market test is different because Graham has a track record as a fine art and commercial photographer and makes his living from those photographic activities. If the court finds in favour of Prince, it profoundly affects the concept of copyright in photography and maybe other forms of art.

A longer account of the legal issues can be found here.

CONCLUSION:  Appropriation art  has increased in the Fine Art field at a rapid pace in recent years. Cases such as those of Richard Prince described above serve to highlight the extremely uncertain situation of current copyright law and tests of Fair Use. The fact that each nation has its own Copyright law makes it even more complicated when cross-national jurisdictions must decide what is legal and what is not and even then cannot necessarily impose any penalties.

UPDATE: I am doing some research at present regarding the Australian law regarding the use of others’ photographs/paintings in fine art. This is a difficult issue given the increasing popularity of original paintings referencing other Australian artists and their work. It is estimated that there are hundreds (or more) of such paintings now in circulation in the secondary market. Some of these may be deliberate fakes, but others are works done using the styles and techniques of well-know contemporary artists. The question of what constitutes a “copy” is very unclear.  

Recently a Victorian court quashed the conviction of two painters who were said to have created imitation Brett Whiteleys, for instance.

https://www.abc.net.au/news/2017-04-27/whiteley-art-fraud-convictions-quashed/8476216

In reproducing an image of this allegedly “fake” painting here, without permission, I may  also be offending against copyright law. If the painting in question is indeed a deliberate fake, is it nonetheless covered  by existing copyright law?