Few decisions are as sweeping as U.S. District Court Judge Deborah Batts’ summary judgment in favor of photographer Patrick Cariou last Friday in Cariou’s copyright lawsuit against Richard Prince, Gagosian Gallery, Larry Gagosian and Rizzoli Books over Prince’s appropriation of photos from Cariou’s Yes Rasta book for Prince’s 2008 Canal Zone series of works, which, according to the decision sold for $1 million apiece.
Judge Batts ruled that Prince’s appropriation of Cariou’s work failed to meet standards of fair use on four specific grounds, which comprised a perhaps unintended esthetic critique of Prince’s overall artistic practice. She noted that Prince had used Cariou’s photographs in toto with minimal alterations, adding that Prince had testified that his work had no specific meaning (crucial to a narrow definition of "fair use" as commentary). The judge also charged Prince and his studio with acting in "bad faith" by requesting copies of Cariou’s book from the photographer’s studio without specifying the intended artistic use and never negotiating any kind of rights agreements with Cariou.
Now, anyone who knows Prince’s work knows that minimal yet overall appropriation in the service of bad faith is what his work and career are all about, yet the judge rejected this meta kind of appropriation, ruling that it did not fall within the definition of fair use. Indeed, Judge Batts implied a kind of slippery slope by observing that Prince had not cut up or sectioned Cariou’s pictures sufficiently, making an observer wonder whether a Mimmo Rotella standard of radical pictorial transformation would be the minimum standard for fair use.
Either way, having a judge as an interpreter of the meaning of art remains Kafkaesque: we can trot out the entire oeuvre of Andy Warhol, Robert Rauschenberg and a thousand other artists as violators of Judge Batts’ standard. But what of photographer Cariou? Is he not an artist, as well? There is undeniable schadenfreude in seeing Prince suffer, notably when his “Canal Zone” show was one of his laziest (but wasn’t that the point?) and a best seller at high retail price points. Indeed, Judge Batts decreed that, absent a stay for an appeal from the defendants, Prince’s work from the series and the tools used to make it should be obliterated in some way in the next 10 days, with those paintings already sold forbidden from being (literally) hung on the walls. Presumably, Cariou will have to go after their owners specifically.
Rough justice might demand that Cariou himself do the destruction and that Prince photograph the process and produce a new, very ironic series that would sell for tens of millions apiece. But this proposal enters a metaphysical plain of justice and recompense apparently beyond the scope of the law.
CHARLIE FINCH is co-author of Most Art Sucks: Five Years of Coagula (Smart Art Press).