A Prince of the Art World

Richard Prince is an artist. At least according to some people. Others have less flattering terms for what he does.

Prince is principally a painter and a photographer. He may be best known for his technique of “appropriating” photographs which he then “rephotographs” to create his works.

One example of this is his work involving photographs from Marlboro cigarette ads of the Marlboro Man. Prince's rephotographed these ads (thus incorporating the works of other photographers) to create his pieces, one of which sold at Christie's in New York for more than $1 million in 2005.

His works have been collected by major institutions, including the Guggenheim.

Shockingly, this practice of “rephotographing” did not sit well with some of photographers whose work appeared in Prince’s pieces. Photographer Patric Cariou is one such photographer.

In December 2008, Cariou filed suit against Prince, the Gagosian Gallery, Lawrence Gagosian and Rizzoli International Publications, asserting copyright infringement in some of the works Prince was showing (and selling) Gagosian’s shop.

Specifically, Cariou alleged that Prince had appropriated 35 of Cariou’s photographs some of which he claimed had barely been changed by Prince. In addition, Cariou alleged that Prince also made more than two dozen paintings that included Cariou’s images.

This is a problem?

Prince argued that his use of the photographs amounted to “fair use.”

As you know, the “fair use” defense is decided on a case-by-case basis. As the Supreme Court noted in its recent ruling in Golan v. Holder (Jan 2012):

[T]he fair use defense, is codified at 17 U. S. C. §107: “[T]he fair use of a copyrighted work, including such use by reproduction in copies . . . , for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright.” This limitation on exclusivity “allows the public to use not only facts and ideas contained in a copyrighted work, but also [the author’s] expression itself in certain circumstances.” Eldred, 537 U. S., at 219; see id., at 220 (“fair use defense affords considerable latitude for scholarship and comment, . . . even for parody” (internal quotation marks omitted)).

Well, try as he might to sell the “fair use” defense, the District Court didn’t buy it. In March 2011, US District Judge Deborah A. Batts ruled against Prince, Gagosian Gallery, Inc., and Lawrence Gagosian, finding that Prince’s use of Cariou’s photos was not fair use.

Citing to the case of another pop artist, the court pointed to the 1992 Rogers v. Koons case in which infringement was found (and fair use rejected) in another instance of artistic “appropriation.”

So, what’s an artist to do? Why appeal of course!

This is precisely what Prince did, and now, ladies and gentlemen, the briefs are in and we wait for a ruling from the Second Circuit. (Prince et al. v. Cariou, case number 11-1197.)

Cariou is arguing that fair use does not apply because Prince failed to use his photographs in any transformative way. Prince argues that the pieces were sufficiently transformative because they created something new with a different purpose from the original.


Now interestingly, Prince did not simply rephotograph Cariou’s photos. Prince’s work included collaged, enlarged, cropped, tinted or over-painted images which, he did not deny, had been taken from Cariou's book of photographs “Yes, Rasta.”

However, on the flip side, Prince testified that he “doesn't really have a message” to communicate when he makes art, and that he not transformed Cariou’s images in any way so as to effectively make a comment about them.

I find this a little surprising. I mean, agree with the defense or not, like the work or not, that seems to be precisely what the artist known as Prince is doing. If the artist himself is not make a statement or a comment or an observation, then why does the work itself have any value? It is like Roy Lichtenstein’s famous “comic book” images: if all he’s doing is copying at random images that are not intended to convey something to the viewer, why bother? Why is it art? Certainly, why pay $1M or more for it?

I would expect that turns out to be a tactical error, both in terms of the litigation and in terms of the value of the work.

I’m not taking sides in this one. Having been raised in and around the visual arts, I’m pretty accepting of a wide spectrum of creativity (even when I think it is ridiculously facile, like the works of Damian Hurst), because I’m in favor of encouraging rather than squelching art, artists, creativity, creative effort, etc. It’s all art to me, it just might be shitty art.

This seems to be the view taken by wider artistic community as well. Various museums and others filed amicus briefs arguing that the district court's ruling imperils appropriation art generally. Again, appropriation is nothing new. Look at the works of Warhol, Lichtenstein and Jasper Johns as three well respected examples of this. Are we really going to say artists can’t engage in such activity?

I hope not.


Jonathan Pink is an intellectual property attorney at Bryan Cave, LLP. His is resident in the firm’s Los Angeles and Irvine offices. He represents a wide range of artists (including visual artists, performing artists and musical artists), art galleries and collectors.