March 22, 2011

Looks Like I Picked The Wrong Week To Give Up Everything

Holy crap, I go away for a long weekend, and what happens?

The death toll in Japan doubles,
The number of meltdowns triples [or something],
We are at war in Libya,
The Death Star has the T-Mobile rebellion caught in a tractor beam,
and Richard Prince somehow lost his open & shut copyright infringement case.

I totally did not see that one coming.

UPDATE: OK, I've read through a bunch of the motions, affidavits, and depositions, and the decision [pdf here via aphotoeditor.com], which is basically a flabbergasting shitshow. I'll probably write a bit more specifically later today, but if it stands, it would have major, sweeping, and stifling effects.

Not only would the current operating assumptions of fair use and transformative use be ratcheted way back, but the contemporary art world would be turned upside down. It would restrict both how artists appropriate, or even refer to, copyrighted work. And it would turn galleries into copyright police, with an affirmative responsibility to clear images, sources, and references for the work they show and sell.

If visual artists and the art market have been operating in some kind of an appropriation bubble, this decision would pop it. Artists would have to adopt the sampling, licensing, and rights clearing practices and infrastructures of the music industry, or the entertainment industry.

But the decision has some glaring omissions and relies rather heavily on almost-20-year-old textbooks and articles from law journals, while ignoring several highly relevant, recent decisions. The most notable ignored precedent is Blanch vs. Koons (2006), which happens to involve another Gagosian artist, and which seemed to set out a workable test of transformative use.

From reading the case materials, including Prince's detailed descriptions of the making of each of the 29 Canal Zone paintings, it seems obvious to me that Prince and Gagosian were operating under the transformative work/fair use assumptions of Blanch, where changes in scale, medium, context, and color, along with process, editing, collaging, or other process-related elements, are used to identify a transformative work. Judge Batts doesn't even address process, or any relevance of Blanch to the transformativeness; instead, she makes a blanket assumption that all 29 Prince paintings are infringing because they include Cariou's Rasta images in some way. It's really an eye-popping and untenable conclusion.

At the least, the fact that Gagosian the man and Gagosian the gallery were found equally liable for infringing, I am almost certain that this decision won't go unchallenged. In a series of truly amazing statements, the most shocking is Batt's cursory finding that Prince, Gagosian, and the gallery all acted in bad faith by not proactively pursuing permission from Cariou to use his images. In other words, operating under the assumption that an artist enjoys a fair use exemption to use or reference a copyrighted element, or that an artist is using copyrighted material in a transformative way, is, on its face, bad faith.

With upwards of $20 million in artwork and unspecified but certain punitive damages pertaining to bad faith actions on the line, there is NO way that Gagosian will let this decision stand.

On the other hand, the photographer crowd is jumping up and down with schadenfreudian glee. [Zaretsky's rounding up more reactions at The Art Law Blog]

Since 2001 here at greg.org, I've been blogging about the creative process—my own and those of people who interest me. That mostly involves filmmaking, art, writing, research, and the making thereof.

Many thanks to the Creative Capital | Warhol Foundation Arts Writers Program for supporting greg.org that time.

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first published: March 22, 2011.

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