APPROPRIATION AND TRANSFORMATION

Patrick Cariou, a professional photographer, spent six years among the Rastafarians of Jamaica. and in 20oo he published a book of  portrait and landscape photographs taken during this sojourn.  Yes Rasta sold modestly, earning Cariou about $8,000 in royalties from sales of about 5700 copies. Four of those copies were purchased by appropriation artist Richard Prince. Prince, without permission from Cariou, created more than 30 large-scale art works, called the “Canal Zone” series, which incorporated photographs taken from Yes Rasta, altering them to varying degrees, for example:

cariou 2prince 2

Prince’s Canal Zone series was exhibited at the Gagosian Gallery in 2008.  As the United States Court of Appeals for the Second Circuit noted, with evident awe, in its recent opinion in Cariou v. Prince, the dinner hosted by the Gagosian in association with the show was attended by such A-List celebrities as Jay-Z, Beyoncé, Jeff Koons, Tom Brady, Graydon Carter, Robert de Niro, and Brangelina. Prince sold eight works for a total of $10,480,000 and exchanged seven others for works by Larry Rivers and Richard Serra.  Can life possibly be this unfair?

With respect to all but five of the Prince works (including “Back to the Garden,” above right) the Second Circuit ruled that Prince’s appropriations were indeed fair use as a matter of law. As described in many previous posts collected under the Fair Use category, this determination turned almost entirely on the question of whether the allegedly infringing works were “transformative,” i.e., did they use the Cariou photos as “raw material . . . in the creation of new information, new aesthetics, new insights and understandings.” (The lower court had ruled against Prince, holding that to be transformative the secondary use must “comment on, relate to the historical context of, or critically refer back to the works.” The court of appeals held that these were only non-exclusive examples of how a work may be transformative.) The court of appeals held:

[T]wenty-five of Prince’s artworks manifest an entirely different aesthetic from Cariou’s photographs. Where Cariou’s serene and deliberately composed portraits and landscape photographs depict the natural beauty of Rastafarians and their surrounding environs, Prince’s crude and jarring works, on the other hand, are hectic and provocative. Cariou’s black-and-white photographs were printed in a 9 1/2″ x 12″ book. Prince has created collages on canvas that incorporate color, feature distorted human and other forms and settings, and measure between ten and nearly a hundred times the size of the photographs. Prince’s composition, presentation, scale, color palette, and media are fundamentally different and  new compared to the photographs, as is the expressive nature of Prince’s work. . . .  Here, looking at the artworks and the photographs side-by-side, we conclude that Prince’s  images, except for those we discuss separately below, have a different character, give Cariou’s photographs a new expression, and employ new aesthetics with creative and communicative results distinct from Cariou’s.

A hip-hop artist who appropriates a short sample of a copyrighted recording, perhaps only a few seconds in length, barely perceptible, and of a totally different character than the resulting track, is unlikely to fare as well as Prince. Is there, I wonder, a judicial double standard favoring artists that judges and their acquaintances either “get,” or think they ought to “get,” over those who appeal strictly to the hoi polloi?

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  1. SOME PUSHBACK ON CARIOU V. PRINCE | Express Written Dissent

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