Word is definitely out, but it’s nice to see that copyright insanity has taken a step back for now.
The US Appeals Court largely reversed the earlier court ruling against Richard Prince, finding that the US District Court erred in finding his Canal Zone series paintings infringed the copyrights of Patrick Cariou. Specifically, they said that Judge Deborah Batts used the wrong standard in determining infringement and rejecting fair use.
The Appeals Court judges declared that at least 25 of Prince’s paintings made obvious transformative use of Cariou’s photos. And after laying out a fairly expansive criteria for fair use, it ordered the court to re-review the other five Canal Zone works for infringiness. [That list includes Graduation (inaccurately reproduced below), Meditation (with the dude on the donkey), Charlie Company, Canal Zone (2008), and Canal Zone (2007) (above, which is actually collage, paint on book pages fixed onto a board, which was not in the Gagosian show or the catalogue; it was only shown in St. Barth’s. So why is it even covered by US law? Was it even made in the US? Is it even in the US? Is it impounded with the rest of the Canal Zone works? If so, WHY?]
In addition to citing previously unmentioned quotes from Richard Prince’s own deposition, the judges said that Prince’s intentions, or the unstated lack thereof, were not necessarily required to decide if something is fair use. Fair use can be in the eye of the beholder, specifically the “reasonable observer.” This seems both obvious, and slightly amazing to me. It also jibes pretty well with the amicus brief filed in the appeal by the Warhol Foundation.
It also means that fair use is not dependent solely on an artist making an explicit case for it. If Prince’s refusal to articulate a Koons-scale structure of critique and commentary is not required to appropriate something into your artwork, that would fortify a fair use defense. Rather than discuss art on the law’s terms, Prince has pulled the law toward considering art on its own terms.
Another fascinating aspect of the decision–and by fascinating, I mean obvious and totally in agreement with me–is the court’s emphasis on the changes in size, format, and process between Cariou’s book pages and Prince’s giant inkjet/collage/paintings. [cf this discussion of scale recently] The court went so far as to create its own reference work, similar to the distorted exhibit Cariou entered, but clearer, documenting each painting and the Cariou images and fragments used in it. It’s really nice, and would be very handy for anyone wishing to make their own Canal Zone paintings. Ahem.
Study for Untitled (After YES RASTA, p. 59), 2013
Anyway, there is more to come, including possibly a new round of evidence and testimony about Cariou’s photos and their appearance and alteration in Prince’s work. Or perhaps someone’ll try to settle. Cariou’s lawyer’s on contingency, I believe, and 40% of nothing is nothing. So who knows how this thing ends. After more than two years since the first cluster)($#%k of a decision, though, today’s gotta be something of a relief for Team Prince.
Here, btw, is a roundup of previous Cariou v. Prince posts, including readings, reviews, and info about the book I made, Canal Zone Richard Prince YES RASTA: Selected Court Documents from Cariou v. Prince, which contains the transcript from Prince’s amazing 7-hour deposition in the case:
Early days of THE BOOK:
the five most ridiculous things about the Richard Prince copyright decision
The Richard Prince decision? You’re soaking in it!
Richard Prince’s Spiritual America
Size Matters?
Actual found blurb: “THE WITNESS: This could be a cool book.”
Introducing: Canal Zone Richard Prince YES RASTA: The Book
More documents from the case, like:
The Movie Pitch that started Canal Zone: “The Movie is called ‘Eden Rock'”
The great Amicus brief filed by the Warhol Foundation
Some CZRPYR reviews and events:
Canal Zone YES RASTA &c. reviewed in The Brooklyn Rail
HOLY SMOKES REVIEW at the Poetry Foundation by Kenneth Goldsmith, which is really humbling and amazing
Apr 2012: CZRPYR included in “Canceled,” curated by Lauren van Haaften-Schick, at the Center for Book Arts
Sept 2012: Audio & coverage of a Printed Matter talk with Joy Garnett and Chris Habib where we actually discussed and looked at Prince’s paintings, which almost never happens.
Looking a bit at the amazing language of depositions, in relation to the live staging of the deposition we did for AFC.
A great discussion of a a WTF image: Virginia Rutledge and Penelope Umbrico talking copies
Buy Canal Zone Richard Prince YES RASTA: Selected Court Documents from Cariou v. Prince online, or in person at Printed Matter.
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the making of, by greg allen