Oral Arguments in Prince v. Cariou Appeal Prove $ Trumps Transformative Use

I know you’re as sick of this guy as I am. Left Patrick Cariou’s image from Yes Rasta. Right: Some really dumb shit that’s worth a LOT of clams.

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.

Transformative Use is Useless

‘Transformative use’ is just mucking things up.

That’s what I think.

Providing a pivot for the Cariou v Prince case and the only real point of interest no matter what the pundits say, transformative use, instead of the fog-clearing test that it was supposed to be, has become the main particulate in a legal fog of war that has lasted three years now.

Thus far, the dueling Cariou v Prince briefs have added new certainty to my theory that transformative use is a singularly unhelpful notion.

Read the rest on Hyperallergic

Will Round Two of Cariou v Prince Change Art Law Forever?


You're going to see a lot of this guy -from Patrick Cariou's Yes Rasta

Go ahead, expect more of these sweaty headlines with question marks in them. Because, with the now rather infamous Cariou v Prince case up for appeal sometime this year, we are facing another deluge of half-informed, and angrily contentious, punditry which will wash over the raw, dry, factual sands of more professional reports like a tsunami of histrionics.

Drowning in the madness will be all those bleeding hearts who root for the little guy, and the sundry art world know-it-alls who root for controversy, along with the fastidious fence straddlers like myself who can’t do right by anyone — and, let us not forget, the stalwart naifs who insist on seeing appropriation as flat out theft.

In the background, lawyers toil away, building sand castles of the driest, rawest, facts they can muster.

It is no wonder that the case has captured the attention of so many. It involves a lot of money, after all, and it pits an underdog, Patrick Cariou, against an art star, Richard Prince, and his giant posse of star-makers and lawyers. It also comes after artists had become cocky, with most copyright infringement cases settling without trial, and often to the mutual benefit of defendants and plaintiffs.

At base the issue is this: Richard Prince’s team must prove that district court judge Deborah A. Batts ruled in error when she decided against Prince’s fair use claim. Patrick Cariou’s lawyer, Dan Brooks, must argue that the ruling did, in fact, use the correct legal standard.

Brooks will file his opening brief by January 25th. Faced with the formidable 135 page appeal filed on Oct. 26, 2011 by big guns Boies, Schiller & Flexner, and a nearly 50 page amicus brief filed on behalf of Richard Prince by the Andy Warhol foundation, plus similar briefs from Google and a consortium of museums (including The Metropolitan Museum of Art, The Museum of Modern Art and The Art Institute of Chicago), Brooks will have to answer five newly refined points of contention.

  1. That contrary to the first circuit court’s decision, the Canal Zone works that use Cariou’s photos are indeed transformative in every sense established by art history and accepted artistic practice and constitute a fair use of those images.
  2. That Prince’s “intentions” do not factor into the meaning that his work may or may not have since it is the viewer and the context of a work that give it its meaning.
  3. That contrary to testimony, Cariou did not lose any marketing opportunities due to Prince’s use of his images; indeed, his lawyers argue, his book prices soared after the initial bout of litigation.
  4. That the first circuit decision, if upheld, will create a “chilling effect” on future creative work, and thereby will override the very purpose of the fair use exception which is intended to protect free speech and works of social value.
  5. That, in the Batts decision to protect the copyright holder, Patrick Cariou, the rights of the appropriation artist, Richard Prince were unduly impeded, as her ruling overreached in lumping all of the thirty paintings under one ruling.

In Part One of this Three Part series, I set up a virtual dialogue between Dan Brooks (Schnader Harrison Segal & Lewis LLP.), Patrick Cariou’s lawyer and Anthony Falzone, executive director of the Fair Use Project and a Lecturer in Law at Stanford Law School.

In Part Two, I will discuss the five points above in greater detail. In Part 3, I will part the waters.

Read the rest and look forward to Parts TWO and THREE on Hyperallergic

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