MANHATTAN (CN) – Controversial appropriation artist Richard Prince can appeal a finding that that he wrongfully used a French photographer’s images in his artwork, the 2nd Circuit ruled.
The one-page order simply notes that the case presents “a continuing controversy capable of redress by this court.”
Paris-based photographer Patrick Cariou had moved to dismiss Prince’s appeal of an order directing Prince to destroy a collection of paintings based on Cariou’s photos.
Cariou’s 2000 book, “Yes Rasta,” culminated from 10 years documenting a group of Rastafari in the secluded mountains of Jamaica, according to the complaint.
Though New York-based Prince took interest in the photographs, appropriating at least 41 images for paintings he unveiled in late 2007, he did not think much of Cariou, according to Cariou’s complaint.
Cariou says Prince told Interview Magazine that he found the images in a book and started “fooling around with” them because he “loved the dreads” and the book, but that the “the pictures are very quickly done – they’re not really thought about.”
After scanning or printing the photos directly onto canvas, Prince made some alterations, such as enlarging or cropping them. In some cases, he added some painted-on gas masks, guitars or other features to the Rastas.
In addition to the Canal Zone exhibit of Prince’s work at the Gagosian Gallery, Rizzoli published a book based on the collection. Cariou was never credited as the photographer, and Prince in fact credited himself in the book as the copyright owner of all artworks and insert images, according to the complaint.
Cariou presented evidence that Prince’s conduct hurt him financially, with one gallery pulling the plug on plans to showcase Cariou’s work when it learned that Prince had already used Cariou’s photographs.
U.S. District Judge Deborah Batts sided with Cariou in March 2011 and ordered Prince to destroy any infringing copies of the photographs. Prince claimed to have transformed Cariou’s photos into a new work, protectable under copyright law fair-use exemptions, but Batts wasn’t buying it.
Though Prince had said he was not concerned with the meaning of Cariou’s photographs, and that he used them instead to further his own unique artistic vision,
Batts said Prince had copied “the very heart” of Cariou’s work, adding slight transformative value.
Since the Gagosian Gallery had already sold several of Prince’s paintings for about $10 million, Batts ordered the gallery to inform collectors that public display of the works would constitute a violation of copyright laws.
Experts in the art world have worried that this decision will create a negative precedent for artists like Prince who create new works from other artists’ images. “Are they suggesting that galleries go into the studios of artists and say, ‘you can’t do that because that might not be fair use and we might lose a lot of money?'” Columbia University law professor Phillipa Loengard asked in Artnet magazine. “Do they have to have insurance? Are they supposed to demand changes to work before exhibiting, a sort of pre-exhibit review?”
“The use of another artist’s work in an effort to make social commentary has been the crux of fair use determination,” Loengard added, “to say we shouldn’t have that as a factor seems to be difficult.”
Prince’s lawyer, Josh Schiller, told Artnet that Batts “put too much weight on the artist’s own characterization of his work, and the artist’s ability to articulate what their message is.”
“Besides, what’s to stop attorneys from simply coaching clients on how to describe the meaning of their art?” he asked.
Cariou even expressed some confusion about Batts’ definition of “transformative” in an interview on the website Artinfo after his court victory. He added that it comes down to the fact that “it has to be transformed for a purpose. You can comment on the original work, or you don’t copy it, or you get a license.”
Some experts say the controversy has added value to Prince’s Canal Zone paintings, 21 of which are locked up in a Long Island City warehouse, according to Artnet. “In the case of Prince, an artist who routinely flouts the law – on principle, it would seem – the argument could be made that the lawsuit raises the works’ cachet,” Artnet said, quoting one collector who bought a Canal Zone painting precisely because of the controversy.