We’ve used our blue face image logo for many years to show how we keep saying the same things over and over until we’re blue in the face. Now, we’re reading so much that is inaccurate or incomplete in all forms of media that we are getting the blues – and we ain’t talking about the BB King, Miles Davis kind of blues.
Which brings us to Richard Prince…yet again. What can we say that hasn’t been or isn’t being said, anguished over or chewed on by artists, lawyers and judges already?
Mr. Prince makes huge fees employing, shall we say the “unpaid for contributions of others” to create his “art”. He relies on the legal concept of “fair use” or some other basis to employ the work of others for his financial gain.
It is our joint opinion that Mr. Prince’s most controversial works don’t meet the fair use test. Be that as it may, Mr. Prince makes big bucks, very big bucks. OK, obscene bucks. As a practical matter (with rare exceptions) only persons whose work has been registered AND have enough “skin in the game” would be able to challenge his “appropriations” in the courts.
So-called “appropriation” artists have received claims or been sued in the past and many have settled those claims for meaningful sums. In some instances valuable art work was reportedly exchanged in lieu of cash. Those artists suddenly got “got religion” after paying others and/or their own and/or both sides’ gigantic lawyers’ fees.
Using both lessons learned and lawyers who knew how to help, the smart ones refined their techniques so as to stay out of trouble. How one gathers the material they seek to “appropriate” is often the key. Warhol, Rauschenberg and Koons are all known for their appropriation art. They’ve been sued and either smartly settled or in Koon’s String of Puppies case, lost in court.
It has been widely reported that after Warhol was sued by photographers Charles Moore, Patricia Caulfield, and Fred Ward he eventually settled with all three of them. He was so freaked out by his legal experiences, that he changed his approach. His new and elegant strategy? When he wanted something he either routinely licensed it from its creator or surprisingly found out that if he simply asked for permission, he got it free of charge. No one from that point on ever underestimated his business acumen.
Rauschenberg was sued by photographer Morton Bebee for the painting titled “Pull”. Settled. Jeff Koons lost a famous case with photographer Art Rogers, and his later Popeye series resulted from obtaining a license before creating the work. Don’t fall for the “factoids” being put out by art community websites and blogs that state or imply that artists can just “appropriate” anything. In most instances appropriation is just a fancy word for stealing. Using the word “appropriation” gives the word theft a veneer of legitimacy. That skim coat washes off pretty quickly in most lawsuits.
Of course this is not Mr. Prince’s first legal go round. In a prior case Patrick Cariou sued Mr. Prince. We’ve read over and over that Prince “won” that case. No he didn’t. See our pieces in this blog: It Ain’t Over Till it’s Over, It Still Ain’t Over
Judge Batts initially creamed Mr.Prince. The case was appealed and much of her initial decision was reversed and a re-trial ordered regarding a portion of the subject images. Five images were sent back to the lower court which originally for Cariou, to be reviewed by the court again to determine if under new criteria set by the Circuit Court of Appeals a fair use defense was appropriate. The appellate court clearly indicated that it did not think that the 5 images would qualify as “fair use”. Before there was a new hearing or an appeal to the US Supreme Court the parties settled thus depriving everyone of a definitive ruling on the boundaries of the fair use defense.
The questions we had were, A.) When did the appellate judges become art critics? B.) The application of the criteria used by the appeals court to determine “fair use” was baffling as applied by the court. Most attorneys and judges agree that no hard line, definitive case law came out of Cariou v Prince, which would have happened if the case moved on to the US Supreme Court. That would have been great for all concerned in the photo and in the artist communities. A clear decision for everyone to be guided by would likely have been issued. But no, Patrick Cariou and Richard Prince entered a settlement, meaning, we have no idea as to the outcome.
As in about 95% of filed cases, both parties decided rather than continue paying their lawyers and gamble on an outcome, they would come to a resolution they could both live with or as attorneys say, “A perfect settlement results in mutually unhappy litigants”. Anyone’s guess as to the content of that settlement is as good or bad as anyone else’s. The settlement terms are confidential. Often times a case is settled so that one part agrees not to appeal a decision. Whether or how much money changed hands is unknown. Alas the utter lack of facts never seems to prevent a shower of “knowledgeable” web opinions by people who know next to nothing.
We also see that a group called ”Suicide Girls” is offering their own Instagram images- the same ones Prince used – at a greatly reduced price, $90 versus Prince’s sticker price of $100,000. Eye catching idea, but hardly an original one. The fine art photographer Andreas Gursky’s famous photo of a 99 Cent store, was photographed at the same location, by another photographer. The price difference again for a Gursky, which sold once at Sotheby’s for 3 Million dollars, versus someone else’s very similar photograph will vary, shall we say, widely. If such were not the case, then watch Jack and Ed re-painting Picassos (how hard can that be?) or better, simply re-shooting some of Mr. Avedon’s more profitable work.
One other “factoid” about Mr. Prince’s first appropriation. Many years ago, Mr.Prince “re-produced” photographer Sam Abel’s Marlboro Man image. People point to Sam not suing Prince. Very true, but not because he didn’t want to and not because Prince was protected by the concept of “fair use”. Rather Mr. Abel could not sue because he no longer owned the copyrights to his images shot for Marlboro. In those Mad Men days of cigarette advertising, photographers were paid buckets of money to shoot, but had to turn over their copyrights to the cigarette company. Only a copyright holder or someone given rights by that copyright holder can sue.
As far as Marlboro was concerned, with cigarette advertising then becoming more and more restrictive, Prince’s very expensive artwork served as free advertising. There was simply no upside to them in suing Prince.
And the last “factoid” we read in a comment online, isn’t even a factoid, it’s just wrong. It is not accurate to state that putting something on Instagram automatically makes it “public domain”. Not at all. It furthers the completely wrong idea, that we hear from infringers over and over and over, that the image they found and downloaded from Google Images is OK to use because it was on Google Images and thus free to use. That’s like saying the unattended car parked at the convenience store with the engine running was public domain, so I took it. Assume that and you’ll be singin’ the blues in the county jail.