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.
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.
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.
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.
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.
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.
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.
The whimsical Phillips de Pury & Company website is, as I’ve noted in the past, a remedy to prim auction house hem-haw. And I am pleased that Lot #1 of their Under the Influence auction of March 8, went for a full quarter of it’s estimated $100, 000 to hammer at $26,000 — the full proceeds of which, will benefit DonorsChoose.org, which sends dollars to classrooms with projects in need of materials and resources.
It is much the credit of PdP that they take on nonsense and give full fluff to the requisite irony.
Here’s the site description of Lot #1, in it’s full glory:
FULL PROCEEDS BENEFIT DONORSCHOOSE.ORG
STEPHEN COLBERT, SHEPARD FAIREY, ANDRES SERRANO AND FRANK STELLA
Portrait 5, Stephen(s), 2010
Inkjet on canvas, with acrylic spray paint, Sharpie, looked-at-edness of Frank Stella. Printed at 291 Digital in New York. Suitable for Framing. 47 x 36 in. (not available in metric) Signed “Andres Serrano” lower left.
ESTIMATE: AVAILABLE UPON REQUEST •
SOLD AT $26,000
PROVENANCE The Colbert Report
In an ambitious on-going work that calls to mind the sprawling constructed worlds of Matthew Barney and identity-questioning narratives of Sophie Calle, TV pundit and conceptual artist Stephen Colbert has been performing his site-specific installation, “The Colbert Report,”…
Not just to be traditional in hating the big ones, but just to be hands down honest, I have to say that the 2011 Armory show was pretty dull going. And that, despite Marjorie Strider becoming the new Tom Wesselmann even while the old Tom Wesselmann is still squeaking out dozens of tiny tin farts in the form of those homely little steelcuts.
I didn’t really hate Strider so much before I saw her tryptich and then wandered through a forest of Mel Ramos while contemplating the sad little Wesselmanns that were keeping lonely vigil on narrow, barely examined walls. The thing about Strider is that she’s on a tribute bandwagon but all I see when I look at her vapid models is the lack of design, something Wesselmann had going in spades. Mel’s just a boner machine and that’s swell, but, dare I ask, is it STILL art? I mean, at best this sort of thing was sort of politically, and socially clever, a way of “having your cake and eating it too” — but now, it’s just “eating it.”
Theme #2 this year was TEXTURE, with a good deal of the newer work being so irresistable to touch that there were signs warning one not to. I found that most of my photos of these works were awful, so I snagged this one, below, from the Galerie Thomas site.
A continued respect for Pousette Dart and Gerhard Richter were also indicative that a love of texture may be ongoing trend. So Holis Taggart had Strider, but also a Pousette Dart room as well, and it was salon full of those cakey little bakeys, old and new, most of them petite (oldies cranking out tiny newies was a subtheme, I must say, with many sub-sized John Chamberlains and not a few teensy Stellas clinging to the walls like exotic bugs).
Theme #3 would be Tricky Optics: A lot of wires and tubes played tricks on my eyes, (and my horrid camera), there were many lovely pieces of drilled and molded acrylic, and acrylic layered on canvas and also on enamel… chunky colorful and textural, these layered works were just about the only pieces that were flattered by the awful lighting and industrial feel of the Armory.
The cleverest work I saw was also the dullest. It attracted a good deal of attention due to Juan Genoves’ use of paint as a bas relief medium, creating weensy beensy people out of charming colored blobs. Very dear and eye-catching, but ultimately pointless.