Holy, Moses: a U.S. District Court in New York has stunned many in the contemporary art world by skipping past the Solomonic approach and ordering some copyright offending works potentially worth huge sums to be plucked from the public and impounded and destroyed. The decision, finding “appropriation artist” Richard Prince liable for copyright infringement, leaves him and the noted Gagosian gallery on the wrong and apparently costly side of a reworking of a series of pictures by French photographer Patrick Cariou.
Appropriation art is a popular approach that involves the deliberate copying of existing images by an artist, who then is said to take possession of the work by changing or adding to it, all the while intending that a viewer recognize the original image. Such deliberate “borrowing” of an image is termed “recontextualization,” which, in turn, is supposed to help the artist comment on an image’s original meaning and the viewer’s association with the original image or the real thing. Exemplars of this approach supposedly include Andy Warhol and his Campbell’s Soup Can series of 1962.
The Calnnco blog notes that Prince used Cariou’s photographs from his book Yes, Rasta without permission or compensation to the photographer to create artworks, some of which little altered or transformed the originals. District Judge Deborah Batts ruleed that for “fair-use exceptions to apply, a new work of art must be transformative in the sense that it must ‘in some way comment on, relate to the historical context of, or critically refer back to the original works’ it borrows from,” the New York Times’ Randy Kennedy writes.
Some of the paintings by Prince, such as those included in his exhibition Canal Zone of 2008 consist almost entirely of images taken from Cariou’s book; they are collaged, enlarged, cropped, tinted, or over-painted in a minimal fashion. In total, Prince says he “appropriated” at minimum of 41 photos from Yes, Rasta as elements of his Canal Zone Paintings.
The judge’s ruling stated: “It is clear that the market for Cariou’s photos was usurped by [Prince and Gagosian] … the court finds that Prince has unfairly damaged both the actual and potential markets for Cariou’s original work and the potential market for derivative-use licences for Cariou’s original work.”