{"id":1456,"date":"2015-06-01T17:22:42","date_gmt":"2015-06-01T21:22:42","guid":{"rendered":"https:\/\/thecopyrightzone.com\/?p=1456"},"modified":"2015-06-01T18:28:58","modified_gmt":"2015-06-01T22:28:58","slug":"dont-prince-make-our-brown-eyes-blue","status":"publish","type":"post","link":"https:\/\/thecopyrightzone.com\/?p=1456","title":{"rendered":"Don\u2019t Prince Make Our Brown Eyes Blue?"},"content":{"rendered":"

We\u2019ve used our blue face image logo for many years to show how we keep saying<\/em> the same things over and over until we\u2019re blue in the face. Now, we\u2019re reading so much\u00a0that 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.<\/p>\n

Which brings us to Richard Prince…yet again. What can we say that hasn’t been or\u00a0isn\u2019t being said, anguished over or\u00a0chewed on by artists, lawyers and judges already?<\/p>\n

Mr. Prince makes huge fees employing, shall we say the “unpaid for contributions of others” to create his “art”.\u00a0He relies\u00a0on the legal concept of “fair use” or some other basis to employ\u00a0the work of others for his financial gain.<\/p>\n

It is our joint opinion that Mr. Prince’s\u00a0most controversial works don’t meet the fair use test. Be that as it may,\u00a0Mr. Prince makes big bucks, very big bucks.\u00a0 OK, obscene bucks. As a practical matter\u00a0(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\u00a0the courts.<\/p>\n

So-called\u00a0 \u201cappropriation\u201d artists have received claims or been sued in the past and many\u00a0have settled those claims for meaningful sums. In some instances valuable art work was reportedly exchanged in lieu of cash.\u00a0Those artists suddenly\u00a0got\u00a0“got religion”\u00a0after\u00a0 paying others and\/or their own and\/or both sides’\u00a0gigantic lawyers’ fees.<\/p>\n

Using both\u00a0lessons learned and\u00a0lawyers who knew how to help, the smart ones refined their techniques so as to stay out of trouble. How one\u00a0gathers the material they seek to\u00a0\u201cappropriate” is often the key.\u00a0 Warhol, Rauschenberg and\u00a0Koons are all known for their appropriation art. They\u2019ve been sued and either smartly settled or in Koon\u2019s String of Puppies case, lost in court.<\/p>\n

It has been widely reported that after Warhol was sued by photographers Charles Moore, Patricia Caulfield, and Fred Ward he eventually\u00a0settled with all three of them.\u00a0He was so freaked out by his legal experiences, that he changed his approach.\u00a0His new and elegant strategy? When he wanted something he either routinely\u00a0licensed it from its creator or surprisingly found out that if he simply asked for permission, he got it free of charge.<\/em> No one from that point on ever underestimated his business acumen.<\/p>\n

Rauschenberg\u00a0was 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\u00a0a license before creating the work. Don\u2019t fall for the \u201cfactoids\u201d being put out by art community websites and blogs that state or imply\u00a0that artists can just “appropriate” anything.\u00a0In most instances appropriation is just a fancy word for stealing.<\/strong>\u00a0 Using the word “appropriation” gives the word theft a veneer of legitimacy. That skim coat washes off pretty quickly\u00a0in most lawsuits.<\/p>\n

Of course this is not Mr. Prince’s first legal go round. In a prior case Patrick Cariou sued Mr. Prince. We\u2019ve read over and over that Prince \u201cwon\u201d that case. No he didn\u2019t.\u00a0 See our pieces in this blog:\u00a0 It Ain\u2019t Over Till it\u2019s Over<\/a>, It Still Ain\u2019t Over<\/a><\/p>\n

Judge Batts initially creamed Mr.Prince.\u00a0The case was appealed and much of her initial decision was reversed and a re-trial ordered regarding a portion of the subject images.\u00a0Five images were sent back to the lower court which\u00a0originally 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.\u00a0The 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.<\/p>\n

The questions we had were, A.) When did the appellate\u00a0judges become art critics? B.)\u00a0The application of the\u00a0criteria used by the appeals court\u00a0to determine \u201cfair use\u201d\u00a0was baffling as applied by the court. Most attorneys and judges agree that\u00a0no hard line, definitive case law\u00a0came out of Cariou v Prince, which would have happened if the case\u00a0moved 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.<\/p>\n

As in\u00a0about 95% of filed\u00a0cases, 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”.\u00a0 Anyone’s guess as to the content of that settlement is as good or bad as anyone else’s.\u00a0 The settlement terms are confidential.\u00a0 Often times a case is settled so that one part agrees not to appeal a decision.\u00a0Whether or how much money changed hands is unknown.\u00a0Alas the utter lack of facts never seems to prevent a shower of “knowledgeable”\u00a0web opinions by people who know next to nothing.<\/p>\n

We also see that a group called \u201dSuicide Girls\u201d\u00a0is offering their own Instagram images-\u00a0the same ones Prince used –\u00a0at a greatly reduced price, $90 versus Prince’s sticker price of $100,000.\u00a0Eye catching\u00a0idea, but hardly\u00a0an original one. The fine art photographer Andreas Gursky\u2019s 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\u2019s for 3 Million dollars, versus someone else\u2019s very similar photograph will vary, shall we say, widely. If such were not the case,\u00a0then watch Jack and Ed re-painting Picassos (how hard can that be?) or better, simply re-shooting some of Mr.\u00a0Avedon’s\u00a0more profitable work.<\/p>\n

One other \u201cfactoid\u201d about\u00a0Mr. Prince\u2019s first appropriation.\u00a0 Many years ago, Mr.Prince “re-produced”\u00a0photographer Sam Abel\u2019s Marlboro\u00a0Man\u00a0image. People point to Sam not\u00a0suing Prince. Very true, but not because he didn\u2019t want to and not because Prince was protected by\u00a0the concept of “fair use”. Rather Mr. Abel could not sue because he no longer owned the copyrights to his images\u00a0shot 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\u00a0copyright holder or someone given rights by that copyright holder can sue.<\/p>\n

As far as Marlboro was concerned, with cigarette advertising then becoming more and more restrictive, Prince’s very expensive artwork\u00a0served as\u00a0free advertising. There was simply no upside to them in suing Prince.<\/p>\n

And the last \u201cfactoid\u201d we read in a comment online, isn\u2019t even a factoid, it\u2019s just wrong. It is not accurate to state that putting something on Instagram\u00a0automatically makes\u00a0it \u201cpublic domain\u201d. 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\u2019s 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\u2019ll be singin\u2019 the blues in the county jail.<\/p>\n

 <\/p>\n","protected":false},"excerpt":{"rendered":"

We\u2019ve used our blue face image logo for many years to show how we keep saying the same things over and over until we\u2019re blue in the face. Now, we\u2019re reading so much\u00a0that is inaccurate or incomplete in all forms of media that we are getting the blues – and we ain’t talking about the […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[151,1,3,374,100,15],"tags":[452,22,451,445,188,447,449,454,446,450,448,443,453,444],"class_list":["post-1456","post","type-post","status-publish","format-standard","hentry","category-be-aware","category-copyright-info","category-copyright-registration","category-fine-art","category-in-the-news","category-legal","tag-andreas-gursky","tag-appropriation","tag-art-rogers","tag-charles-moore","tag-fair-use","tag-fred-ward","tag-jeff-koons","tag-marlboro-man","tag-patricia-caulfield","tag-patrick-cariou","tag-rauschenberg","tag-richard-prince","tag-sam-abel","tag-warhol"],"_links":{"self":[{"href":"https:\/\/thecopyrightzone.com\/index.php?rest_route=\/wp\/v2\/posts\/1456","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/thecopyrightzone.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/thecopyrightzone.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/thecopyrightzone.com\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/thecopyrightzone.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=1456"}],"version-history":[{"count":4,"href":"https:\/\/thecopyrightzone.com\/index.php?rest_route=\/wp\/v2\/posts\/1456\/revisions"}],"predecessor-version":[{"id":1460,"href":"https:\/\/thecopyrightzone.com\/index.php?rest_route=\/wp\/v2\/posts\/1456\/revisions\/1460"}],"wp:attachment":[{"href":"https:\/\/thecopyrightzone.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=1456"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/thecopyrightzone.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=1456"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/thecopyrightzone.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=1456"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}