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Cariou v. Prince


by Walter Robinson

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On Tuesday, I found myself sitting on a dais in the Great Hall of the New York City Bar Association, along with a panel of four lawyers, an artist and a curator, all quite eloquent. The title of the event? "What We Talk about When We Talk about Appropriation: Contemporary Art after Cariou v. Prince."

The moderator, Amy J. Goldrich, a contemporary art attorney and member of the bar's Art Law Committee, asked me a question. "Is concern about copyright on the increase among contemporary artists?"

Some evidence in this regard arrived the very next day in my email inbox -- a little late to inform my answer -- via two separate complaints from artists that some other artist was biting their stuff.

So, yeah, it's a bloody battle out there in the image archive.

Before I get to the artist's complaints, let me briefly revisit the impressive talent on the panel, and hint at their various points of view. These are the lawyers you should hire when copyright starts haunting you.

Claudia Ray of Kirkland & Ellis LLP was counsel for the AP copyright lawsuit against Shepard Fairey. She argued that copyright laws protect the rights of the copyright holder to profit from the original work. Appropriation artists, she said, should ask permission, and pay a fee for borrowed images.

Dan Cameron, who begins a new job as curator at the Orange County Museum of Art next month, and who supported Janine Gordon in her copyright lawsuit against Ryan McGinley, expressed his sympathy for the underdog, whose interests can easily be flattened by the art-market juggernaut.

New York artist Hank Willis Thomas, who is represented in New York by Jack Shainman Gallery, was queried about "Unbranded: Reflections in Black by Corporate America, 1968-2008," his series of photographs appropriated from advertisements aimed at African-Americans. His use of the photos, which highlight the cultural clichés surrounding race, has resulted in some objections from the original copyright holders -- and Thomas said that his inclination was to remove a photo at the copyright holder's request.

Anthony Falzone, of the Stanford Fair Use Project, and Virginia Rutledge, head of the PIPE Arts Group, are the co-authors of the Warhol Foundation amicus brief in Cariou v. Prince. Falcone framed fair use and appropriation in terms of the First Amendment. If an artwork is a kind of speech, then appropriating it would be part of a counter-argument.

Rutledge emphasized the urgency of the issue. In the wake of the high-profile Cariou v. Prince case, she suggested, copyright claims involving art and artists are on the increase. "We are facing a culture of attribution crisis!"

Rutledge's intuition is supported by the two complaints that came in over the transom to Artnet Magazine.

First was a query from Yvonne Grams, a Miami artist who works under the name Evo Love. She did a fortune-teller performance at the 2010 Fountain Art Fair in Miami, styling herself a "Lil Miss Fortune" and producing hand-written predictions for $1, along with "off-the-cuff one-liners of honest hard truths," i.e "your next life partner? meow meow."

Now, she complains, another local Miami artist named David Rohn has stolen her act, performing it at the 2011 Scope art fair, where he sat in a booth and gave fortunes as the Amazing Ultran. "I know David very well," Grams writes in an email. "I was shocked and disappointed." Grams concludes her note by saying, "We need to open up a conversation about plagiarism and local artists ripping off other local artists."

The second complaint involves rather more than $1 fortunes. The Chinese artist Ling Jian (b. 1963) -- or rather, his attorney, Philip Qu, and Sheng Nien Tang, a representative of his Beijing gallery, Tang Contemporary Art -- claims that a one-time painting assistant, Zhang Xiangming (b. 1975), is plagiarizing Ling's works.

Since the 1990s, the two agents say, Ling has made portraits of Chinese women on round canvases, among them his "Communist Sister" and "Beijing Girl" series. Recently, they have discovered that Zhang is producing paintings "that go beyond stylistically mimicking the paintings of Ling Jian" to "plain and simple forgery."

Comparison of paintings by the two artists do reveal a striking similarity, although they are not exactly the same. Ling's attorney sends along several examples, however, that seem to show how paintings by Zhang might have been copied from ones by Ling. As it happens, both artists are represented by London dealer Tanya Baxter.

Each artist has an active auction market, with Ling Jian's auction record being over $325,000, set at Phillips de Pury London in 2008, and Zhang Xiangming's being $43,700, set on artnet Auctions. Another work by Ling, estimated at $90,000-$110,000, is currently for sale on artnet Auctions.

Ling's lawyer says that Ling has initiated copyright litigation against Zhang in Beijing, and plans to pursue legal remedies in the U.S., U.K. and other countries.

WALTER ROBINSON is editor of Artnet Magazine. He can be contacted at Send Email