So What The Hell Is "Fair Use" Anyways?...Patrick Cariou v. Richard Prince...The Saga Continues...

The decision is out: 25 of the 30 artworks by Richard Prince make fair use of Patrick Cariou's photographs. The remaining 5 works were remanded to the District Court to apply the proper legal standard and make a determination whether they also make fair use of Cariou's photos. Such is last month's ruling by the United States Court of Appeals for the Second Circuit.

To recap the debate: internationally renown contemporary artist, Richard Prince, appropriated Cariou's photographs of Rastafarian people (without Cariou's permission) in transforming the photographs into artworks of a different feeling. The District Court (lower court) found Prince (and Gagosian Gallery) liable for infringement of Cariou's copyright interests.  The following image, for example, shows a photograph on the left by Cariou; on the right, Prince's appropriation of it, a work which sold for about a million dollars:

 
To put it into perspective, imagine that you took a photo of your friend, the man on the left. Then, without your permission (and without any compensation of course), someone used that photo and transformed it into what is depicted on the right, changed the size, and sold it for a million dollars. Copyright infringement or fair use?

Of significance is that the above example is one of the five artworks in which the Circuit Court did not make a determination because I suppose it was too much of a close call. All of the artworks at issue can be seen here: http://www.ca2.uscourts.gov/11-1197apx.htm. And the Circuit Court's opinion can be found here: http://blogs.library.duke.edu/scholcomm/files/2013/04/138475739-Cariou-v-Prince-2nd-Circ.pdf

Here are a couple examples of Prince's pieces found to be fair use (the appropriated photographs of women are not Cariou's, and I'm not sure whose they are -- if they're yours maybe you should join this lawsuit):

Whose rights should prevail? I foresee that the Circuit Court's holding is not final, and the case will now (in due time) be heard by the United States Supreme Court.

The purpose of copyright law is "[t]o promote the Progress of Science and useful Arts . . . ." U.S. Const., Art. I, § 8, cl. 8. And as the Circuit Court noted, "[C]opyright is not an inevitable, divine, or natural right that confers on authors the absolute ownership of their creations. It is designed rather to stimulate activity and progress in the arts for the intellectual enrichment of the public...[The] fair use doctrine mediates between the property rights copyright law establishes in creative works, which must be protected up to a point, and the ability of authors, artists, and the rest of us to express them -- or ourselves by reference to the works of others, which must be protected up to a point." (A more incontrovertible example of fair use is me posting images of Prince's work on this blog.)

The concern I have with the Circuit Court's ruling, however, is that the judges themselves concluded what was fair use versus what could be copyright infringement. The Circuit Court heard the case on a review of a summary judgment motion. In the law, a judge may grant summary judgment when there are no disputes of material fact but only disputes regarding issues of law. If there are triable issues of fact (such as a dispute whether a traffic light was red or green), then it is up to a jury to decide.  

In this case, the judges are aware of this, but they state: "Although fair use is a mixed question of law and fact, this court has on numerous occasions resolved fair use determinations at the summary judgment stage where . . . there are no genuine issues of material fact. This case lends itself to that approach.” 

What the Court fails to explain is how "this case lends itself to that approach." While I don't necessarily disagree with the Court's conclusions, the way I see it, this entire case is a dispute of fact. This fair use inquiry rests entirely on aesthetic perceptions, artistic opinion and expertise, conceptual value of the works at issue, and artistic and scientific evaluations of how the copyrighted works were transformed, while relying on testimony of witnesses and experts -- all issues of fact for a jury to decide! Isn't that why there is such a thing as juries? 

One outstanding part of the Circuit Court's opinion, however, is its rejection of the District Court's order that the defendants (Prince, Lawrence Gagosian, and Gagosian Gallery) deliver Prince's artworks to Cariou for their destruction. Even Cariou agreed that destruction of Prince's work would be against the public interest. Good! The very nature of this dispute has made all of the artworks museum-quality stuff.

(Notably, it appears several museums, including the Art Institute of Chicago, The Metropolitan Museum of Art, MoMA, and LACMA, filed amicus briefs offering information as nonparties to the case because of their serious interest in the outcome.)

What remains unfortunate, especially for us artists interested in knowing how far our copyright extends, or how much we may appropriate from others, is that the line remains a giant haze: competent courts, such as the federal district court and circuit court in New York, can completely disagree.

Thank you for reading about the paintings, sculptures, drawings, works in progress, reviews, Doodle of the Day, and other art by Los Angeles artist Lucas Aardvark Novak. To see older blog posts and other doodles, click HERE :)

Fair Use: Gagosian's Prince

"Prince's bad faith is evident," concluded the judge for the United States District Court, Southern District of New York in 2011. Returning to the law paintings series, this painting is another reference to the contemporary lawsuit, Cariou v. Prince, et al., in which internationally acclaimed artist, Richard Prince, was sued for copyright infringement. Prince appropriated Patrick Cariou's photographs without permission, altered them slightly, and sold them through Gagosian Gallery.

This painting incorporates a portion of the Court's opinion and facts of the case; for example: "Gagosian Gallery sold eight of the Canal Zone Paintings for a total of $10,480,000.00, 60% of which went to Prince and 40% of which went to Gagosian Gallery." While Prince was sued for appropriating Cariou's work, I have appropriated one of Prince's famous nurse paintings here. I do believe, however, that the "fair use" defense to copyright infringement better applies to my work than it does to Prince's in the Cariou lawsuit.

Bad Faith, 10" x 8", oil and paper on wood panel, 2013.

Prince Gagosian

Returning to the law paintings series, this painting is a reference to the contemporary lawsuit, Cariou v. Prince, et al., in which Lawrence Gagosian (international art dealer) is also a defendant sued for copyright infringement.

Affixed to the wood panel is a portion of the published opinion from the United States District Court, Southern District of New York, containing stinging language in its holdings, including "the Gagosian Defendants were well aware of (and capitalized on) Prince's reputation as an appropriation artist who rejects the constricts of copyright law, but they never inquired into the propriety of Prince's use of the Photos."

Prince Gagosian, 10" x 8", oil and paper on wood panel, 2013.

While Cariou earned practically nothing for his photographs, Richard Prince was the artist who appropriated them without any permission, altered them slightly, and sold about $10 million worth through Gagosian Gallery. Hence the lawsuit.

The District Court held both Prince and Gagosian liable for copyright infringement. The case remains on appeal.

The Hirst Heard 'Round The World

Damien Hirst is currently exhibiting his “Dot” paintings at the Gagosian galleries around the world, prestigious galleries known for exhibiting some of the big names in visual art. I recently visited Gagosian Gallery in Beverly Hills for a firsthand experience of the internationally-hyped paintings. Mostly on loan from private collections, they are "Dot" paintings – spots of paint aligned on different sized grids:


In recent weeks, Hirst has also been in the news for admitting that he, like many other big artists, has teams of assistants actually physically create the paintings, and this resulted in indirect criticism from world-renowned artist, David Hockney.

Hirst states that he gets bored easily, so after he thinks up the idea, he has his assistants create the work. But Hirst's idea to create color grid paintings was not his own - color chart/grid paintings were explored by abstract artists such as Ellsworth Kelly over 50 years ago, and Gerhard Richter started doing them in the mid 1960s. Here is an example of Richter's work from c.1974:


So what is the profound difference in Hirst's paintings? Well, instead of rectangles, his color grid is comprised of...CIRCLES! Or, instead of hanging a picture conventionally, sometimes he will hang it like a DIAMOND!:


The circles are painstakingly drawn with a compass and filled in with color, the paintings being advertised that no color is ever repeated, thus amounting to a collection of many different colors. (Here's one way to never "repeat" any color: pay a visit to a Lowe's Home Improvement store, go to the painting section, and grab any one of the thousands of color samples available along the wall to be mixed and made by a machine. I'm not saying that this is how Hirst's assistants made each color, but the details of each painting do provide that they were made with household paint.)

Hirst has also gone big – GIGANTIC. Some paintings are more than two stories high containing dots each with five foot diameters. (He is also currently having his assistants work on another huge painting containing 1 million dots.) The enormity of the formulaic work reminded me of the endless string of blockbuster superhero films in theaters over the last decade, engaging the desire to be superhuman, entitled, or larger than life, and perhaps an example of Hirst's pharaoh-like power and pursuit to make metaphorical pyramids.


I need not describe in detail my satisfaction or dissatisfaction of Hirst’s work currently exhibited at Gagosian Gallery, but I'll throw in the phrases: “remarkable phenomenon” and “mysterious art world”.

Interestingly, as I was driving away from the Hirst exhibition, I happened to pass by a liquor store with a forsaken window decoration not so different from the million dollar paintings less than a mile away...