One of my main points in putting out books of documents from the Cariou v. Prince case is to pull the extraordinary language and logic and concepts of the judicial world into the discussion of art. These are worlds that don't intersect very much, or very publicly, and that have their own highly distinct modes of discussion and analysis. So there are moments of real discovery and wonder when they are forced together.
Like this definition of photography as art, presented in a footnote [p.15] for the amicus brief filed in support of Cariou by a group of eight professional photography and licensing associations, including American Photographic Artists, and for some reason, Brooklyn freelance photographer Jeremy Sparig:
10 Photography is a form of art. Declaration of Jeremy Sparig, dated Dec. 16, 2013 ("Sparig Decl."), at 9. As an art, it has two expressive components: 1) the empirical fact of the moment; and 2) the contextual decisions made by the photographer. Id. at 10. Together these comprise the artistic creation of a photographer. When a photograph is appropriated, the entire aesthetic creation of the original artist is taken. Minimal alteration of an appropriated photograph, does not transform the original work. Painting and photography are substantial similar aesthetic presentations. Id. at 11. ("Both photos and paintings use shape, form, color (or its absence), lines, light and dark, objects and symbols and subjects, to create a space for the production of meaning. 'The signifying system of photography, like that of classical painting, at once depicts a scene and a gaze of the spectator, an object and a viewing subject... Through the agency of the frame the world is organized into a coherence which it actually lacks, into a parade of tableaux, a succession of decisive moments.'" Id. at Ex. 2. A photograph, minimally altered, presented as a painting must be subject to visual comparison as the basis for a "reasonable purpose" test. Otherwise, photographers have no effective remedy at law, if the appropriator can simply rationalize his presentation.Yes, well. When you put it that way. When you put it that way, you can see how narrow this characterization of photography is within the realm of photography itself, but also have vast the gap is between the sorts of issues and concerns of this niche of photographers and those of contemporary artists who use or engage photography.