Art law Comment USA

Still testing the frontiers of art

The latest ruling on Richard Prince’s use of existing photographs shows the legality of appropriation is far from settled

Richard Prince at his best: Untitled (Cowboy), 1989, appropriated a photograph used to advertise Marlboro and left it untouched. Photo: Richard Prince; Metropolitan Museum of Art

Hallelujah and hosannas be unto all peoples: the Second Circuit Court of Appeals of the United States of America has decided, in its infinite art-historical wisdom, that 1920s Expressionist photomontage is worthwhile art and is protected by the “fair use” doctrine in American copyright law. On 25 April, in a reversal of a lower court’s findings, the appellate judges decided that when Richard Prince used banal Rasta shots by the photographer Patrick Cariou as the source of 25 angstful paste-ups—late-in-the-day derivations from Hannah Hoch and Kurt Schwitters—he was clearly transforming Cariou’s originals into very different works of art. Sure, those judges are 90 years behind the times, but who ever said that justice moved fast?

On the other hand, because of another part of the same court’s decision, the art world should see weeping and gnashing of teeth: the judges determined that appropriation art, which has been found worthy and fascinating by critics, curators and collectors for a mere 40 years, might not deserve to be protected as part of the “activity and progress in the arts for the intellectual enrichment of the public” that, according to one of that court’s own judges, is a goal of copyright law.

Appropriation came under fire when the court decided that five of Prince’s Rasta-themed pieces were so close to Cariou’s originals that there was doubt about their validity as new artistic expressions. (They have asked the lower courts to rule on that doubt.) According to the court, it seems that Prince might not want to keep working through the appropriation strategies that made him such a giant of 1980s art, and ought instead to stick to the art-historically trivial Expressionism of his fading years. The more out-of-date and derivative Prince’s work is, the more protection it seems to be granted under copyright law, according to these judges.

I guess the court might also prefer to see Prince’s great Marlboro men photos—perfectly straight copies of identical photos found in advertising —expunged from all the textbooks that bill them as central to our recent artistic culture. And I dare not imagine what the court would make of new work by the young New York artist named Eric Doeringer, whom I’ve praised for rephotographing the very ads that Prince used for his first Marlboro men, thus appropriating Prince’s appropriations. Second Circuit judges don’t seem so much into “meta”.

For a moment at the beginning of their written decision those judges come off as less out-of-touch. They introduce the case by describing Prince, accurately, as “a well-known appropriation artist”, and then, figuring some of their readers may not be so up on that game, they quote the Tate’s definition of the practice as “the more or less direct taking over into a work of art of a real object or even an existing work of art”. Like, say, when an artist directly “takes over” into his art a bunch of photos shot in Jamaica by someone else.

But then our Second Circuit Solomons almost immediately veer off into Philistine territory by describing how Prince’s work “has involved taking photographs and other images that others have produced and incorporating them into paintings and collages”. Not quite, Your Honours. Prince’s art, at its most important, hasn’t been about “incorporating” anything into paintings and collages —the judges seem to be confusing him with Schwitters, or maybe Robert Rauschenberg. Prince has been about re-presenting—or even, hey, “appropriating”—others’ images, unchanged, as new works of art, and waiting to observe the result. What’s so notable about his appropriations, of course, is that by looking precisely like the images they copy—and only because of that fact—they achieve an utterly transformed effect.

Prince’s appropriations, for example, provoke endless discussion—even lawsuits —centring on the nature of artistic creativity and originality and the ownership of imagery; the sources that Prince copies provoke no such thing. Cariou’s photos sit there, almost inert, on the edges of our culture; Prince’s versions of them pull a court into debates it might otherwise like to avoid and get art critics to write cranky essays in their defence.

Even the market recognises that difference, starkly: the original commercial photos used in the Marlboro ads might be worth a few hundred dollars; Prince’s re-presentations of the same images are worth millions.

But our friends on the appellate court seem unable to see the distinction, because they are stuck in a mid-century modern thought-world where a work of art can only be considered in terms of its visual qualities—their decision throws around the word “aesthetics”—and where art’s intellectual and social effects have no role.

The real weakness with most of Prince’s Rasta-themed works, and the reason they won’t matter in the art-historical long run, is that they make too many changes to Cariou’s originals, until they end up in the same aesthetic realm as those sources—the realm of striking images with straightforward expressive effects. Had Prince simply presented Cariou’s images without any changes at all, then he’d have moved them into a truly separate cultural zone. (In fact, he’d have been adding a new riff to appropriation art: appropriators have almost always used famous or notable images to make their points; by copying unknown and banal ones, such as those by Cariou, Prince could have purified the genre, making it about the act of borrowing and little else.)

The judges cite “the creation of new information, new aesthetics, new insights and understandings” as “the very type of activity that the fair use doctrine intends to protect for the enrichment of society”. That ought to put appropriation art at the very centre of fair use, at least according to the tens of thousands of art lovers and experts who admire the innovative early work of Prince and his peers.

The judges smartly say that they don’t care what Prince intended in his borrowings. (In his depositions Prince was, as usual, a touch incoherent about his aims.) They want to consider instead how the works may “reasonably be perceived”. Books and essays and dissertations, by the hundreds and thousands, have shown that a faithful artistic appropriation is most “reasonably perceived” as utterly different in meaning from its source. You would think that the judges would defer to such expert perceptions, rather than deciding for themselves which 25 Prince images have truly transformed the Carious into “something new and different” and which five remain doubtful cases. (This is just how the court’s single dissenting judge felt, questioning his own eye for “transformative” art, and also that of his colleagues.)

Luckily for art history, the matter doesn’t end with the courts’ latest decision. Cariou himself has appealed the case further, to a full panel of all 13 Second Circuit appellate judges, and they may yet be made to understand the real creative and cultural issues at stake. Or even if they refuse the case, the lower court may still see the light, and decide that, however close they may be to their sources, Prince’s five suspect images are as transformative as the other 25.

The stakes here are high, and real: a knowledgeable source has told me that concerns around copyright issues were what led the Whitney Museum’s recent retrospective of Sherrie Levine, the great appropriation-art pioneer, to be so bizarrely short on her actual appropriations.

This kind of art, it turns out, is more delicate than other types, and needs more legal protection and clarity. After 40 years, appropriation still advances such a radical position, is so much on the cutting edge, that even smart judges can’t quite deal with it.

The writer has been the staff art critic at the Globe and Mail, the Washington Post and Newsweek. He publishes his Daily Pic at and

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30 Sep 13
15:53 CET


"The act of cropping itself denotes severe authorship in his eyes." Only too true. But not in the eyes of the law or the aggrieved people/artists he borrows from. Cat got it right in one.

15 Jul 13
4:42 CET


The mind-blowing degree of self-satisfaction in this piece takes the breath away. What is it with Richard Prince fans that brings out that particularly repugnant sort of fart-whiffing smugness? The courts have to make decisions that are anchored in precedent. Copyright law moves slowly because the law moves slowly because we count on it to be based on history, context, and social balance. The artist who makes something needs to get his monie's worth and his credit's worth from it and the artist who needs resources needs some lee-way to use what's out there. The law has to balance these. Some dude with a penchant for scissors, squeegees, and guitars can't just waive that all away. Lawyers have to argue that a work is transformative. ANd what is or is not transformative is hard to define -- the artist says he cropped it, so it's transformed. He looked at it a different way, so it's transformed. Careful what you wish for: IP is totally invalid when everything is transformative.

1 Jul 13
16:26 CET


This is great, but Prince would disagree that he appropriates things "unchanged." The act of cropping itself denotes severe authorship in his eyes.

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