In 2000, a French photographer named Patrick Cariou published “Yes, Rasta,” a book of dramatic black-and-white portraits of Rastafarians set against a lush Jamaican landscape. Eight years later, the insouciant artist Richard Prince debuted his “Canal Zone” series of collages, which used several dozen of Cariou’s images as their primary source material. Prince manipulated the images according to his typically playful style: cropping out or tinting bodies and backgrounds, adding daubs of paint to obscure faces, and inserting electric guitars into the hands of some of the dreadlocked figures. A world-famous conceptual artist, Prince did not seek Cariou’s permission to use the photographs. Several of the collages sold to private collectors for a total of more than ten million dollars.
What happened next is a case study in the imbroglio surrounding intellectual-property law in the visual arts. Cariou, claiming copyright infringement, sued both Prince and New York’s Gagosian Gallery, which exhibited the collages and published them in a catalogue. The photographer won the case in New York district court, in 2011, and a judge ordered Prince to destroy the unsold paintings. Prince appealed, arguing that his work fell under U.S. copyright law’s fair-use exemption because of its “transformative” nature. Last year, an appellate court largely agreed.
Traditionally, a fair-use defense succeeds when the new use of the copyrighted work is considered criticism, commentary, educational, or otherwise “transformative.” Of the three judges sitting on the appellate court, a two-judge majority made the surprising argument that “Prince’s work could be transformative even without commenting on Cariou’s work or on culture, and even without Prince’s stated intention to do so.” (Indeed, during the district-court proceedings, Prince was asked: “Were you trying to create anything with a new meaning or a new message?” He answered: “No.”) The judges found that twenty-five of the thirty paintings were transformative; five pieces were sent back to the district court for reëvaluation. The dissenting judge, meanwhile, wondered how the other two judges could “confidently” make a distinction between the pieces that were transformative and those that were questionable. Cariou petitioned the U.S. Supreme Court to review the ruling. In November, the Court declined the case.
Richard Prince is not the only contemporary artist to find himself embroiled in a lawsuit over an act of appropriation. The Associated Press famously filed an infringement counter-lawsuit against Shepard Fairey over his iconic “Hope” portrait of Barack Obama, which was based on an AP photograph. That case was settled out of court after Fairey admitted to destroying evidence. And Jeff Koons has been sued three times, with varying results, for using copyrighted images in his work. As with those lawsuits, Cariou’s case failed to clarify many of the ambiguities surrounding fair use in the visual arts. At stake is the question of how artists are to produce relevant work about a society that is more saturated than ever with ready-made images, many of which are under copyright.
“Artists want to be able to reference the known world in their art,” Patricia Aufderheide, the director of the Center for Media and Social Impact, a research center at American University, told me. “Sometimes they are a little puzzled about what they can do.”
Last week, the College Art Association, an organization of about fourteen thousand artists and arts professionals, released a report on the state of fair use in the visual arts. The association commissioned Aufderheide and Peter Jaszi, a law professor at American, to be the principal investigators. They found that most professionals have no idea how to employ fair use. As a result, they wrote: “Their work is constrained and censored, most powerfully by themselves, because of that confusion and the resulting fear and anxiety.”
Based on interviews and an online survey of artists, curators, and academics, the report found that, unlike Prince, most arts professionals assume that permission for using an image must be explicitly granted by the copyright owner, or else the user risks a lawsuit. The authors called this “permissions culture”: editors choose not to publish books that they believe might have prohibitive permissions costs; historians opt to focus on scholarship that will not pit them against the avaricious estates of modern artists; museums delay or abandon digital-access projects; and artists shy away from appropriation rather than make what they believe to be an artistically vital but risky fair-use gambit.
Cases like Prince’s and Fairey’s frighten potential “fair users” in part because they present an image of copyright law that is capricious; rulings may seem to hang on a judge’s gut feelings. But the alternative—permissions culture—has its Kafkaesque moments, too. The College Art Association report described one museum worker who was frustrated by a policy that forced her to buy permission from a licensing organization to reproduce a work of art that was in the museum’s own collection and that it believed was in the public domain. Few institutions can afford to fight a protracted intellectual-property lawsuit. As a result, according to the report, the question of whether to treat an image as fair use is derailed by an exaggerated fear of litigation.
Kembrew McLeod, a self-described “professional art prankster” and media-studies professor at the University of Iowa (where I also teach), knows these fears well. McLeod wrote and executive-produced a documentary, “Copyright Criminals,” about the history of sampling and remix culture. The film featured more than four hundred unlicensed samples of copyrighted songs. McLeod believed that all of these samples were covered under fair use. Nevertheless, he was told at the start of his project, in 2003, that no one would ever insure or distribute such a film. Then, in 2005, several of the major professional-documentary-filmmaking groups published a “code of best practices” for fair use—stating, for example, when a news clip can be used as part of a media critique, or what to do when a song or image is accidentally captured while filming something else. The document, written with the help of Aufderheide’s Center for Media and Social Impact, convinced insurers to loosen their fair-use restrictions. In 2009, McLeod got the film insured, and, in 2010, it was broadcast on PBS and distributed by IndiePix.
“Fair use is always handled on a case-by-case basis, and judges will look to what the community standards are,” McLeod told me. “When the major associations get together and put into writing best practices that are then vetted by lawyers, it really strengthens each individual documentary-maker’s ability to assert fair use.”
The Center for Media and Social Impact has helped trade groups to craft “best practices” documents that define community standards for fair use in journalism, cinema studies, poetry, and even dance. Now, the College Art Association has hired Aufderheide to help develop best practices for visual artists.
Will such a code assuage fears of litigation? Sergio Muñoz Sarmiento, an artist and lawyer, doesn’t think so. “Visual art is different from music, fashion, film, everything,” Sarmiento, whose New York law firm represents visual artists and arts organizations, told me. “An artist can make a fashion line and say, ‘This is art.’ An artist can put a football game together between two teams and say ‘This is art.’ It is much more difficult to establish best practices for visual art because of how mixed the media are.” He pointed to section 101 of the U.S. Copyright Act, where works of visual art are defined. “It’s the classic ‘painting, drawing, sculpture, photography, and printmaking,’ ” he said. “And when they define sculpture, they define it as casting, carving—very traditional, conventional terms. And the whole point of the avant-garde was to do away with that.”
Last week, Sarmiento took to his art law blog, Clancco, to vent his frustration with the College Arts Association report, which he felt was “one-sided.” The report, he told me, depicts artists as victims, rather than as potential beneficiaries, of copyright law. “It perpetuates the idea of the artist as having to rely on private benefactors”—meaning grants, fellowships, and institutional affiliations—rather than on licensing their work. “Permissions culture—as if that’s a bad thing!”
Aufderheide disagreed; she told me that a code of best practices helps artists not to blindly invoke fair use in every case, but to better understand how others in the arts community appropriate images. “Not having those practices publicly articulated makes it hard for an artist to know if they’re in the middle or on the edge of what’s generally considered acceptable,” she said. “And it’s certainly hard for a judge to know.”
In a world where artists like Ai Weiwei and the members of Pussy Riot are imprisoned for politically dissident work, the threat of an intellectual-property lawsuit may seem like a minor censorship problem. Yet expansions to copyright and trademark protections over the past half-century have become another form of censorship. We live in a country where the use of paintings in a museum’s collection, Emily Dickinson’s poems, the phrase “freedom of expression,” or Donald Trump’s “You’re fired” hand gesture can be restricted by intellectual-property laws. For an artist, how to comment on this state of affairs without risking infringement remains an unsolved—perhaps unsolvable—problem.
Sometimes, though, an artist’s act of appropriation is not only fair but cosmically just. On Tuesday, Richard Prince retweeted a since-deleted image of a painting of one of the “Canal Zone” collages. The painting is part of a new series, “Banal Zone,” commissioned by the artist Jomar Statkun and produced in a Chinese painting factory. “That’s not my painting,” Prince later tweeted. “That’s someone else’s painting of one of my paintings. They should sell this to Cariou’s lawyer.”
Patrick Cariou photograph, as altered by Richard Prince.