I stick to my unique opinion that Transformative Use is the least informative and worst measure you can use to defend appropriation: it’s vague and it is beside the point. The market argues well enough for itself and if you don’t believe me, keep tuned to the case and see. The MOST important points that will be made will turn on arguments about money.

Let’s begin…

The Cariou team took a beating in court this morning as three judges heard the oral arguments from both sides in the Prince v. Cariou appeal.

The judges seemed dismissive of key arguments that Price’s pilfering brought harm to Cariou’s market.

 Art in America quotes Judge Parker whose comments drew laughs from the courtroom:

 “Bringing up the market is a clear loser for you. You sold to a totally different audience, you’ve admitted that not many of the books were sold, you sold them out of a warehouse in Dumbo, and that the book was out of print. Prince was selling to a wealthier crowd, and on this side of the river.”

The judges also questioned Cariou lawyer Dan Brooks’ claim that gallerist Christiane Celle dropped Cariou from a show when she heard that Prince’s works were on display at Gogosian and that they contained Cariou’s imagery. One dealer, doesn’t “prove the foreclosure of a market” according to judge Schiller, moreover, Celle never did place Cariou on her artist’s roster.

Judge Parker, in a statement perfectly groomed for the press, equated the first circuit’s “draconian” injunction, ordering Gagosian Gallery and Richard Prince to destroy all unsold originals and materials of works that used Cariou’s imagery to something that Huns or the Taliban would approve of.

Meantime the Prince team’s pivotal argument about the transformative value of of Prince’s Canal Zone work rests ironically on the fact that the works, panned almost universally when they first showed, sell for mad dollar bills.

Money. The case can, does, will, and should, in my call-me-cynical opinion, be decided on the money. Money’s easy to measure. It’s easy to argue. And, apparently, Prince and Gagosian are now unabashedly saying so: you can tell an artwork’s message is new and transformative and worthy of salvaging and passing on to our children if people are willing to pay lots and lots of money for it.

Does that argument strike you as sheer bull shit? That’s because it is. How can you tell if an artwork is transformative and full of new and crucial information? Answer: you can’t.

But you can tell if one dude’s theft of another’s imagery is harmful or not.

The thing is, all art is transformative: good art, bad art, shallow art, quotation, re-iteration, mockery: it all adds to the great conversation. And to the extent that one work IS passed along and another is passed up — well, that is the measure of societal value. Pee-ree-od. There is added value in all creative efforts, and in the dialog surrounding their success and failure. So why duke it out in a courtroom with arguments that blather on like Socrates about intangibles like “societal value” and “transformative use”?

The case will bear me out: it will pivot so greatly, so obviously on money that subsequent cases will shrug off philosophy and stick to counting the money.