Is Prince v. Cariou Already Having a Chilling Effect? Contemporary Artists Speak
In 1994, a student in the Whitney Museum’s Independent Study Program created a collage about rape based on the work of feminist photojournalist Donna Ferrato. “It was a radically different use of the image — it was being collaged and literally cut up,” recalled former Whitney director David A. Ross. Nevertheless, the student was served a tall stack of legal papers accusing her of infringing Ferrato’s copyright, and she decided to remove the piece from the show. In his nine years at the Whitney, Ross said this episode was his only experience with copyright infringement trouble.
In the 17 years between Ferrato’s cease-and-desist letter and the historic Prince v. Cariou copyright ruling last March, in which a judge found artist Richard Prince’s “Canal Zone” series to have inappropriately borrowed from Patrick Cariou’s photographs of Jamaican Rastafarians, much has changed. The Internet has transformed the way we see, make, share, and purchase art and other visual media. According to art lawyers, the number of copyright infringement lawsuits (or threatened lawsuits, like that of the Whitney student) has also increased dramatically, in part because copyrighted material is so easily accessible on the Web.
Because the Prince case in particular is so high-profile, his lawyers argue that the district court’s decision will paralyze numerous other artists who work with appropriated imagery. The end result, they claim, will be rampant self-censorship in the art world. “The district court’s holding would force every museum and gallery to undertake an independent legal and factual analysis of every new and existing work within their collection which contained any element of appropriation to decide whether there was any possible copyright infringement,” they write in their appeal of the ruling. “Such a chilling effect could remove all appropriation art from public view.”
Cariou’s lawyers described such claims as “dire warnings” in their response to the appeal. But the fact that this very expensive case is playing out so publicly means that regardless of its legal outcome, Prince v. Cariou has the potential to influence the way other artists, galleries, and museums think about appropriation art. Over the last few months, we spoke with over a dozen lawyers, curators, academics, and artists to see just how the Prince v. Cariou case has shaped their views on the issue of appropriation. While few galleries, museums, or big-name artists were willing to discuss on the record whether the case had a chilling effect on the art they show or make, one thing is clear: we no longer live in an era in which a student in the Whitney’s Independent Study program can borrow imagery without thinking carefully about the law. Since Prince v. Cariou, few artists appropriate without considering the consequences first.
“Even before the district court issued its ruling, we were receiving many more questions about fair use,” said art lawyer Virginia Rutledge, a former general counsel for Creative Commons, a nonprofit group that advocates for more open copyright standards, and a co-author of the Andy Warhol Foundation's amicus brief filed in support of Prince. “Blue-chip contemporary artists asking if their work is legal. Major collectors asking if they need artists to sign indemnifications. I know of planned works that have not been made, or existing works not exhibited, because of concern about copyright infringement claims,” she said. “And these people can afford lawyers, even if they shouldn't have to bear the expense. What about the artists still paying off their MFA loans?”
Nervousness about appropriation has also crept into the art academy. Ross, who now serves as chair of the School for Visual Arts's MFA in Art Practice program, said he plans to assign all his students readings and casework surrounding Prince v. Cariou and other art-related copyright lawsuits. All students are required to take a workshop in intellectual property rights. “I never give anybody legal advice — I don’t give medical advice either,” he said. “But people come to their own conclusions, and that is that this is a litigious time.”
While it is unclear whether the anxiety surrounding Prince v. Cariou is directly suppressing artistic production — very few artists would admit as much on the record — it is certainly making people think more carefully about the work they produce. “After the initial judgment hit the press, I got a flurry of phone calls and e-mails, including from artists who are way more established than I am, asking for advice,” said Joy Garnett, an artist who has lectured and written widely on the subject of fair use. Garnett recalled a particular incident in which a friend who is a conceptual artist worried about a certain logo appearing in a video she had already made. “These artists were afraid of doing the things that they normally do,” she said.
Some artists who work with appropriated material, however, see the lawsuit as a kind of relic, existing in a realm outside the “borrow and be borrowed” culture of the Internet. Several artists quoted Randy Kennedy's recent New York Times article on the legacy of appropriation art after Prince v. Cariou, saying the entire case felt “almost Victorian.” At a time when the Internet allows visual media to be shared constantly and without limit, some artists, particularly those whose practice is linked to the Web, use appropriated material in willful disregard of the Prince case and others like it.
“I take almost a moral stance of just not caring [about potential copyright infringement],” said Michael Bell-Smith, whose multimedia art incorporates material ranging from gifs to industrial videos to music clips. Bell-Smith said that at one point he intentionally pushed the boundaries of fair use for a project in which he encouraged the public to make remixes out of copyrighted material from the estate of the band Funkadelic. “I say this jokingly, but maybe there’s a little truth to it: as an artist, I feel like those rules don’t apply to me. I don’t think about art in moral terms, but I do think that’s something I’ve come to realize I have a strong opinion about.”
For other artists, it isn’t the development of the Internet, but rather that of art history that makes them feel entitled to appropriate imagery in the face of Prince v. Cariou. Elad Lassry, a conceptual artist who uses anonymous-seeming photographs — mostly original, some found — in his work, is one of many who developed in the shadow of the so-called Pictures Generation. “When I was a student, these are the artists and the works — like Sherrie Levine rephotographing Walker Evans — that changed the way I think,” he said. He sees appropriation as part of a legacy his generation has inherited. “My work is not about appropriation. Appropriation is part of a larger cultural exercise. At this moment it is part of the vocabulary and often the tools of young artists. It is such a foundation of contemporary culture — the idea that there is this duality to the image also as a representation.”
BEYOND PRINCE V. CARIOU
The Prince v. Cariou case is exceptional not only because it is being played out so publicly but also because of how much money is at stake. (As part of the decision, Cariou was granted the right to destroy the 21 “Canal Zone” paintings that had not already sold, each valued at over a million dollars.) Such massive sums can make the lawsuit seem irrelevant to artists working today. “When I read that stuff, it’s like reading People magazine,” said artist Karl Haendel, who became famous for his large-scale graphite drawings of appropriated images like a Chevrolet SUV.
Yet many artists BLOUIN ARTINFO spoke with had their own stories of receiving cease and desist letters or reaching settlements with companies and photographers who alleged copyright infringement. Prince v. Cariou is influential, then, not only as a case that may have a chilling effect on creativity, but also as a precedent for other artists dealing with issues of copyright infringement. While most of these cases are settled behind closed doors, Prince v. Cariou is being hashed out by the courts — which means it has an opportunity to change how appropriation art is treated by law.
Recent developments in the field of copyright law mean a new precedent may be more influential than ever. Since Prince v. Cariou was first filed in 2008, more and more organizations specializing in seeking out copyright infringers have formed. "There now seems to be some trolling in the art world around copyright infringement," said Rutledge. "Often the claims involve photography — not surprising since so many images are photo-based. It may be that these photographic image-makers have more familiarity with licensing practices, but the attempt to import those expectations — or those hopes — into art-making is problematic on a number of levels." (Consider the most well-known of these cases, Shepard Fairey vs. the AP, in which the street artist settled with the photo agency for his use of a photograph of then-presidential candidate Barack Obama as the basis for his iconic "Hope" image.)
Certain law firms also specialize in prosecuting copyright infringers. Photographer Jay Maisel employed Harmon & Seidman LLC, a Colorado-based firm, to sue technologist Andy Baio last year over an 8-bit tribute he created to Miles Davis’s “Kind of Blue” that featured a pixel-art version of Maisel’s iconic photo of Davis on its cover. Those familiar with this area of law say that some such copyright-specific firms work with long-term clients on commission and proactively search for artwork that potentially infringes their copyright. Then they contact the artist and either negotiate a settlement or take him to court. "We try to settle cases before filing, but most infringers are so cavalier about their piracy, they do not appreciate the gravity of their wrongdoing until they are brought into court," Christopher Seidman of Harmon & Seidman said in an e-mail. He denied that his firm actively searches for infringements, noting that "we are litigators, not investigators."
Canadian artist Jon Rafman was contacted by the Society for Reproduction Rights of Authors, Composers and Publishers in Canada (SODRAC) and later, the Artists Rights Society of New York, both claiming that his Web site brandnewpaintjob.com infringed the copyright of almost a dozen artists including Roy Lichtenstein, Andy Warhol, Yves Klein, and Jean-Michel Basquiat. The Web site featured a collection of digital artworks Rafman created by applying bits of famous modernist paintings to various 3D models. (Imagine “Starry Night” used as a cover on your sofa.)
Rafman agreed to remove the offending images from all his personal Web sites rather than get tangled in a more complicated legal web. But he maintains he was in the right. "My work should be considered fair use and I think it is ironic that the organizations that were established to defend artists rights are the ones going after artists," he said. He quickly replaced the works he removed with new ones in the same style. The originals, meanwhile, weren't entirely lost: "They had been reblogged so much already," he noted.
Baio, for his part, settled with Meisel for $32,500 rather than take the case to court and risk paying a larger fine and additional attorney’s fees. Though he, like Rafman, still maintains the art was fair use, “it had a chilling effect on all my creative output,” he said. “I was nervous doing anything.”
Richard Prince’s legal appeal is currently snaking its way through the courts. After it is decided, what could the future of appropriation art look like? How could a reversal change that future?
“We have not seen this case before,” said Rutledge. One of the key questions before the court, she noted, is whether a new artwork needs to criticize or comment on a preexisting work to qualify as fair use (though Rutledge maintains the law "accommodates a wide range of expressive uses, not confined to comment on the material borrowed"). "If the District Court’s decision is upheld, it would change appropriation art as we know it. Picasso’s inclusion of sheet-paper music and newspaper clippings in his collages would not be considered fair use under the too-restrictive rule that could be established. But this litigation also has the potential to help clarify that creation of new expression is a primary justification for fair use of existing material, in keeping with both copyright and First Amendment principles. That kind of clarity could open up possibilities for creative work we may not be able to imagine now. It’s certainly not going to stop anyone from making images hoping they could be licensed for other purposes."
The art world isn’t the only group that acknowledges the copyright system is problematic. At the end of October, Congress asked the United States Copyright Office — a subset of the Library of Congress that maintains records of U.S. copyright — to study the problems surrounding small copyright disputes, as well as possible alternatives. One solution under discussion is the establishment of a small claims court. Such a court, set up with simplified procedures and limits, would enable artists to represent themselves without an attorney. It could have major implications for artists who use appropriated material as well as those whose material is appropriated by others: it would potentially make it both easier to defend oneself against copyright infringement claims and easier to sue.
Prince v. Cariou likely will be resolved long before a copyright small claims court ever sees the light of day. And the outcome could have an effect not only on copyright law, but also on art history itself. "We just can’t know what’s going to be valued by later generations, and possibly inspire future work,” Rutledge said. "After Duchamp's first readymades were made, there was a long period before they were rediscovered by a new generation of artists. Who knows what we lose if work is caught up in a lawsuit or never made in the first place because of self-censorship?”