Artists have drawn ideas, thoughts, and concepts from the works of others for centuries. However, copyright infringement issues frequently arise in the contemporary world. The case discussed in this piece concerns contemporary artworks from the ‘Canal Zone’ series by Richard Prince. Most of the works had photographs by Patrick Cariou incorporated in them, which were previously published in Cariou’s Yes Rasta book. Following an analysis of appropriation art history, postmodern theories, contemporary art market, the contradictory nature of copyright law, and finally the US ‘fair use’ test and ‘transformative character’ requirement, the author is critical of copyright law not allowing for appropriation art. She is of the view that under certain circumstances, the use of preexisting art is justified.
Appropriation art history
In the history of art, it would be an impossible task to count all the times artists have ‘copied’, in the broad meaning of the word, one another. Appropriation art per se was recognised around the time Pablo Picasso and Georges Braque made their collages from 1912 onwards, and Marcel Duchamp’s exhibited his ‘Readymades’ in 1915.[1] It can be defined as intentional borrowing, copying, and alteration of existing images and objects.[2] Artists have been ‘appropriating’ each other’s works for centuries. One example is Raphael (fig. 1), whose work was recreated by Diego Velázquez (fig. 2), which in turn inspired Francis Bacon (fig. 3).
Another famous example is Marcantonio Raimondi (fig. 4) from whom Édouard Manet took inspiration (fig. 5). In turn, Pablo Picasso recreated Manet’s work in his 1960 Le déjeuner sur l’herbe d’après Manet (not pictured here).
Appropriation has functioned as a mode of art under different names of imitations, inspirations, or replicas. Artists have used it to signal the influence of other artworks, claim the prestige of a particular heritage, or rework a theme or motif for their own time. With the development of technology and mediums such as photography or digital music recordings, the lines between originality, authorship, and the classic dichotomy of an idea and its concrete expressions have blurred.[3] Today, ‘copying’ requires as little as pressing a camera button; there is no need for Andy Warhol’s photographic silkscreen printing (a stencilling method enabling the production of many similar original artworks e.g. the Marilyn Monroe portraits) or other more complex techniques.
Richard Prince’s take on art
New York-based Richard Prince is one of the most globally influential and commercially successful contemporary artists today. His controversial work can be recognized as a prime example of appropriation art. Prince’s pieces have been exhibited at many museums, with numerous major solo exhibitions, including a retrospective at the Guggenheim in New York in 2007.[4] Some of his most debated pieces over the years were created using the technique of re-photography. The early series known as ‘Untitled Cowboys’ consisted of Prince’s cropped photographs of Marlboro advertisements.
In 2014, Prince took photographs posted on Instagram, added his own words in the ‘comments section’, and exhibited the works at the Gagosian Gallery in New York, which raised questions of copyright infringements. Finally, in terms of legality, the ‘Canal Zone’ series discussed below was possibly the most debated of his works.
Postmodern thought
Appropriation art is inextricably linked to postmodern thinking. Creating artworks out of nothing is impossible meaning anything that could be created has already been created in the past and is being reused.[5] Following this thinking, all works, whether artistic, literary, or musical, are built on cumulative creativity.[6] An illustrative way to think about postmodern art is the metaphor of the palimpsest. Palimpsestic practice was especially important in the Middle Ages when the primary text of a book was effaced to make room for new writings.[7] Today, a palimpsest is a ‘work of art with many levels of meaning, types of style, etc., that build on each other’.[8] Prince’s works can be considered palimpsests, as they are based on content that the artist builds upon by adding new layers and elements.
The French literary theorist and philosopher Roland Barthes wrote on postmodernism. In his essay ‘The Death of the Author’ (1967), he wrote that a ‘text is a tissue of quotations drawn from the innumerable centres of culture’.[9] This meant that the author had no authority over the meaning of the words he or she wrote, and all that happened to the content after it was written was beyond their control.[10] Moreover, he claimed that each artwork was surrounded by a web of connotations and cultural significance, such that it had no definite interpretation and could not be ultimately decoded. He was a firm believer in the idea of ever-present intertextuality—the notion that any text of culture, whether literary or visual, refers to a different text.[11] As an example might serve The Lion King’s main plot line, which resembles that of Shakespeare’s Hamlet. Matt Groenig’s television show The Simpsons is also a flagship example of intertextuality, as references to literature, films, or other cultural phenomena often feature. Similarly, in the essay ‘What is an Author?’ (1969), Michael Foucault proposed the view that the notion of an author is a social construct, and that discourse should be considered as something freely circulating between individuals.[12] Like Barthes, he was of the view that authors can only divide cultural phenomena and ideas into groups, and nothing can be ‘invented’ by way of intellect. Moreover, he noted a historical change in the way we recognize and give special attention to the concept of authorship. As of today, individuals have never had more rights over the works they produce.
Even though these theorists’ principal focus was on literary works, their theories can be applied to other ‘texts of culture’ such as the visual arts. Adopting Barthes’ and Foucault’s thinking in an absolute manner would make it impossible to own rights to an image. In the modern world, the value of intellectual property can amount to unbelievable sums and the view that one should not benefit from what one has created because ‘authorship’ is a social construct is unlikely to be universally accepted. Even though ‘authorship’ is commonly recognized in the art market and the notion of ‘an author’ remains at the heart of copyright law, Barthes’ and Foucault’s thinking appears to be no less valid as a result. However, as shown in the example of Cariou, the idea of authorship can sometimes be more fluid.
Cariou v. Prince
In 2000, photographer Patrick Cariou released Yes Rasta, a book with portraits of Rastafarians and Jamaican landscape photographs.[13] He took the pictures over six years of living on the island, where he studied the Rastafarian way of life based on their closeness to nature, rituals, religion, and self-reliance. Almost like an anthropologist, he gained their trust and they let him photograph their lives. Prince created the ‘Canal Zone’ series by altering and incorporating Cariou’s forty-one photographs from Yes Rasta. Their works were exhibited in 2007 and 2008, first at the Eden Rock hotel in Saint Barthélemy and later at the Gagosian Gallery in New York. In most of them, he incorporated Cariou’s images by the methods of collage, enlarging, cropping, scanning, tinting, and over-painting. Cariou sued Prince for copyright infringement, and the case went up to the Court of Appeals for the Second Circuit.
Legitimization of appropriation art
Recognizing that appropriation art can be publicly, and not only legally, legitimised is crucial, although it was not considered by either the District or the Appeals Court. The public legitimization of different phenomena can subconsciously influence the way we think about things—and, essentially, whether we consider Prince’s works to be of fair use. Hence, the author argues that the public legitimization of appropriation art may result in the legal legitimization of such art. This is because the law adapts to the world around and the public viewpoints, as long as they are not harmful, criminal in nature, etc. In the case of Richard Prince, his established position on the international art scene and the art market should be emphasised. His art has gained legitimacy thanks to major international institutions, such as the Gagosian Gallery, exhibiting his work. The Gallery has held numerous exhibitions of his works (among them the controversial ‘New Portraits’ where screenshots of Prince’s Instagram feed were used), printed exhibition books, and organised exhibition opening dinners. Auction houses are also institutions legitimising artworks. Christie’s, Sotheby’s, and Phillips—all three most prominent auction houses have sold Prince’s works, symbolically showing they agree with his artistic practices. Moreover, the approval of other people can build legitimacy. In this case, the collector’s interest in Prince’s works suggests their high economic value. Celebrities’ interest in his works points towards them being worthy of attention. Lastly, the interest of other artists in Prince’s pieces, such as Jeff Koon’s, propounds they have artistic merit.
Copyright Law
Copyright is a property right subsisting in particular works ‘fixed in a tangible medium of expression’.[14] In the contemporary context of easy reproductions, appropriation art inevitably raises the questions of copyright infringements. Here, the focus is on United States copyright law, as Cariou arose before the District Court for the Southern District of New York.[15] When analysing the purpose of copyright law, one stumbles upon a paradox. On the one hand, the right to prevent others from using one’s work is supposed to ‘stimulate activity and progress in the arts for the intellectual enrichment of the public’.[16] Copyright law is supposed to guarantee artists that no one else will make an unfair economic profit from their work or claim authorship over it. However, this law, which is supposed to protect creativity, may stifle some artists’ visions. Not using the postmodern language of incorporating pre-existing artworks may bar the freedom to comment on political agendas, consumerism, wars, gender, or identity.[17] In the twentieth century, numerous artists creating via different mediums have explored appropriation art, either for the purpose of broadening their creativity or voicing their criticism for various social structures.[18] Hence, a question arises—does copyright law have to stand in opposition to appropriation art?
‘Fair use’ doctrine as a copyright exception
The fair use doctrine answers the question above. It aims at a more flexible application of copyright statutes on occasions where they would stifle artists’ creativity.[19] Fair use is the most common exception to copyright law (distinct from the UK ‘fair dealing’ principle) and limits the original artist’s exclusive rights over a given work.[20] The legal doctrine comes from the Copyright Act 1976 and is significant for Cariou, as Prince asserted it as his defence.[21]The doctrine appears contrary to the orthodox rule that for an artwork to be protected by copyright, it must be ‘original’—meaning it must be an artist’s own creation and not a copy.[22] However, appropriated works are, at times, far from what is colloquially referred to as ‘copies’. The primary rationale for the fair use doctrine is that reinterpretations of old ideas should ‘be accessible to the public’.[23] The fair use doctrine is not defined in the 1976 Act, and the courts are free to adapt the doctrine on a case-by-case basis.[24] However, due to the unpredictability of litigation, fair use art cases arise only seldom and are frequently settled out of court.[25] This makes Cariou even more significant for the US jurisprudence and copyright law in general.
The ‘fair use’ test
To determine whether Prince appropriated the photographs for fair use, the judges in both the District and Appeals Courts looked at a four-factor test set out in section 107 of the 1976 Act. The purpose and character of the use is the first factor. The Appeals Court significantly downplayed the role of this requirement. It shifted its focus to whether the work was transformative, i.e. transforming the original work’s underlying purpose by adding ‘something new’ and presenting the photographs using a completely different aesthetics. The Appeals Court decided that Prince’s artworks have done just that. Hence, even though ‘Canal Zone’ was an economic success (several of the works sold for over 2 million dollars), fair use could still be established.[26]
The second factor concerns the nature of the copyrighted work. Here, the Appeals Court found ‘no dispute’ over Cariou’s photographs’ creative and public character. However, this was deemed of little relevance due to ‘the creative work of art…being used for a transformative purpose’.[27] In terms of the third factor, i.e. the amount and substantiality of the portion used in relation to the copyrighted work, the Appeals Court considered whether the ‘taking’ from Cariou was proportional to the purpose of Prince’s works.[28] This factor consists of quantitative substantiality and qualitative substantiality. The former appears to be the most objective, as it attempts at calculating how much of the secondary work comprises the original one. The quantitative factor is especially relevant, as it enabled the Appeals Court to distinguish between the twenty-five works deemed fair use and the remaining five, which were not.[29]
The fourth factor is ‘the effect of the secondary use upon the potential market for the value of the copyrighted work’. The District Court held Prince’s work damaged ‘the potential market for derivative use licences for Cariou’s original work’.[30] The Appeals Court opposed that view and focused on the different target audiences of both artists. Cariou’s works would primarily appeal to those interested in the niche knowledge area of anthropological studies of Jamaican Rastafarians. On the contrary, Prince’s works target contemporary art enthusiasts, collectors, and people of high social status. This can be evidenced, for example, by the types of guests invited to the Gagosian-held dinner opening the ‘Canal Zone’ exhibition—among them were Jay-Z, Beyonce Knowles, Anna Wintour, Robert de Niro, Angelina Jolie, and Brad Pitt. Thus, the Appeals Court followed the reasoning in Blanch and tried to determine ‘whether the secondary use usurps the market of the original work’.[31] It found there was no harm to the potential sales of Cariou’s work, as Prince’s works appealed to ‘an entirely different sort of collector’.[32][33] Ultimately, the fair use test will establish whether a fair-minded and honest person would have dealt with the work in the given way. For that purpose, the courts are free to consider any other relevant factors they deem relevant, giving them flexibility. They may consider how the appropriating artist obtained the primary work and the extent to which the work was transformative—a point which was closely scrutinised in Cariou.
Transformative art
The term ‘transformative’ was coined in 1990 and has been a significant consideration in the fair use doctrine.[34] It was first relied upon in Campbell v Actuff-Rose Music, Inc.[35] Since then, the courts have adopted various definitions of the word—the narrowest being that a work must be a parody and the broadest that the newer work must manifest a different purpose from the original one.[36] It was precisely the ‘transformative’ nature of Prince’s works that led to the Court of Appeals applying the fair use doctrine. The judges adopted a new definition of the word ‘transformative’—it was enough for the work to have a distinct meaning and not comment on the original work.[37] Before considering the ‘transformative’ element, the District Court decided ‘Canal Zone’ infringed on Cariou’s copyright. The infringement was seen as so abusive that the District Court ordered to ‘deliver up for impounding, destruction, or other disposition […] all infringing copies of the Photographs’.[38] The decision to destroy what many considered art outraged the artistic community.[39] However, after establishing twenty-five works by Prince to be of a transformative nature, the Appeals Court held ‘the law does not require that a subsequent use comment on the original artist or work, or popular culture’.[40] The works only had to have a different character, atmosphere surrounding them, or a distinct mood. The Appeals Court stated that Prince’s artworks: ‘manifest an entirely different aesthetic from Cariou’s photographs. Where Cariou’s serene and deliberately composed portraits and landscape photographs depict the natural beauty of Rastafarians and their surrounding environs, Prince’s crude and jarring works, on the other hand, are hectic and provocative’.[41]The unanswered question concerns the remaining five works remanded to the District Court to consider whether Prince was entitled to a fair use defence. One of the five works based on Cariou’s photograph was Graduation, where Prince allegedly ‘little more than paint[ed] blue lozenges over the subject’s eyes and mouth, and paste[d] a picture of a guitar over the subject’s body’. Unfortunately for us, the case was settled out of court, and whether those works presented a ‘new expression, meaning, or message’ will forever remain judicially undecided.[42]
Other jurisdictions
Prince’s works were considered ‘fair use’ and ‘transformative’, and therefore not infringing on Cariou’s copyright in the US jurisdiction. It is uncertain whether a similar decision would have been reached e.g. in a French or an English court. In English and Welsh law, two different outcomes could be reached in Cariou. On the one hand is the ‘pessimist’ (for Prince) stance of Martin Wilson, an experienced art lawyer. In his book, Wilson claims the law of fair use under UK jurisdiction is considerably narrower than in the US, and it remains unclear whether Cariou would have been successful in UK courts.[43] On the other hand, section 30A of the Copyright, Designs and Patents Act 1988 on caricatures, parodies, and pastiches says works from those categories do not infringe on copyright. Here, it is helpful to consider whether Prince’s works could be considered pastiches. The ordinary definition of pastiche says that it is an ‘imitation of style of pre-existing works, the incorporation of parts of earlier works into new works, and the production of a medley’.[44] Moreover, pastiches usually make ‘no attempt to ridicule, lampoon or satirise the copied work, or comment critically on that work or other themes’.[45] The pastiche exception could help avoid difficulties in assessing whether work is transformative for the purposes of the fair use doctrine.[46] Considering the above, it could be that if tried in the UK, Prince’s artworks would be classified as examples of pastiche, given the artistic techniques applied, and be found as not infringing on copyright.[47]
Conclusion
In closing, Richard Prince, even though controversial for his immense commercial success, has proven numerous times that his appropriation practices enable him to break conventions and create new meanings—which, essentially, is the very purpose of art. Simultaneously, it seems perfectly reasonable for Patrick Cariou to have his photographs protected from being copied and taken commercial advantage of. With appropriation art being so deep-rooted in art history, a compromise between the rigidness of intellectual property law and artistic freedom must be found. By developing new rules across jurisdictions, such as the ‘transformative’ principle discussed in Cariou, there is a chance of arriving at a comprehensive set of legal principles in copyright law. A certain anomaly is necessary—a legal framework which would enable artists to freely create and have their creations protected.
Marysia Opadczuk is a second-year undergraduate in English and European Law at the Queen Mary University of London. In autumn 2022, she will begin a Licence 3 program at Université Paris-Panthéon-Assas. Interested in art history and art theory, Marysia aspires to pursue a career as a solicitor to work on IP and restitution disputes.
[1] Tate, ‘Art Term: Appropriation’ <https://www.tate.org.uk/art/art-terms/a/appropriation> accessed 5 January 2022. [2] MoMA Learning, ‘Pop-Art’ <https://www.moma.org/learn/moma_learning/themes/pop-art/appropriation/> accessed 5 January 2022. [3] Marina P Markellou, ‘Appropriation art under copyright protection: recreation or speculation?’ (2013) 35(7) EIPR 369. [4] Judith B Prowda, Visual Arts and the Law: A Handbook for Professionals (Lund Humphries 2013) 88. [5] Andreas Rahmatian, Copyright and Creativity: The Making of Property Rights in Creative Works (Edward Elgar 2011) 185-6. [6] Graham Dutfield, and Uma Suthersanen, ‘The Innovation Dilemma: Intellectual Property and the Historical Legacy of Cumulative Creativity’ (2004) IPQ 379, 390. [7] Cambridge Dictionary, ‘Palimpsest’ <https://dictionary.cambridge.org/dictionary/english/palimpsest> accessed 5 January 2022. [8] ibid. [9] Roland Barthes, The Death of the Artist (Fontana 1977) 146. [10] Lionel Bently, ‘Review Article: Copyright and the Death of the Author in Literature and Law’ (1994) 57 ModLRev. [11] Roland Barthes, ‘Theory of the Text’ in Robert Young (ed), Untying the Text: A Poststructuralist Reader (Routledge 1981) 31, 39. [12] Michel Foucault, ‘What is an Author?’ in Vassilis Lambropoulos and David N Miller (eds), Twentieth Century Literary Theory: An Introductory Anthology (SUNY 1987) 124-42. [13] Patrick Cariou, Yes Rasta (powerHouse Books 2000). [14] Stroud’s Judicial Dictionary (10th edn and 1st Supplement, 2021). [15] Copyright Act 1976 codified in Title 17 of the United States Code (1976). [16] Jowitt’s Dictionary of English Law (5th edn, 2019); Pierre N Leval, ‘Towards a fair use standard’ (1989) 103 HarvLRev 1150, 1107. [17] ‘Brief of Amicus Curiae and the Andy Warhol Foundation for the Visual Arts, Inc In Support of Defendants-Appellants and Urging Reversal’ 19 <http://cyberlaw.stanford.edu/briefs/CariouVPrinceWarholFoundationAmicusBrief.pdf> accessed 5 January 2022. [18] E Kenly Ames, ‘Beyond Rogers v/ Koons: A Fair Use Standard for Appropriation’ (1993) 93 ColumLRev 1473. [19] Iowa State Univ. Research Found., Inc. v. American Broadcasting Cos (1980) 621 F.2d 57 (2d Cir.). [20] Khanuengnit Khaosaeng, ‘Wands, sandals and the wind: creativity as a copyright exception’ (2014) 36(4) EIPR 239. [21] (n 15) s 107. [22] Markellou (n 3) 370. [23] Suntrust Bank v Houghton Mifflin Co (2001) 268 F 3d 1257. [24] Title 17 of the United States Code, Historical and Revision Notes (House Report No. 94-1476) s 107. [25] Prowda (n 4) 83. [26] In Campbell, even though the song ‘Oh Pretty Woman’ was commercially successful, because it was transformative enough, the fair use defence could be used. Campbell v Acuff-Rose (1994) 510 U.S. 569, 584. [27] Bill Graham Archives v Dorling Kindersley, Ltd (2006) 448 F.3d 605 2d Cir. [28] Blanch v Koons (2006) 467 F. 3d, 257. [29] Graduation, Meditation, Canal Zone (2008), Canal Zone (2007), and Charlie Company. [30] Cariou v Prince (2013) 714 F.3d 694 2d Cir., 353. [31] Blanch v Koons (n 28) 258. [32] Khaosaeng (n 20). [33] Cariou v Prince (n 30) 18. [34] Pierre Leval ‘Toward a Fair Use Standard’ (1990) 103(5) HarvLRev. [35] Campbell v Acuff-Rose (n 26). [36] ‘Copyright Law — Fair Use — Second Circuit Holds that Appropriation Artwork Need Not Comment on the Original to Be Transformative. — Cariou v. Prince, 714 F.3d 694 (2d Cir. 2013)’ (2014) 127(4) HarvLRev 1228. [37] Prowda (n 4). [38] Cariou v Prince, 08 CV 11327 (S.D.N.Y. 18 March 2011) 37. [39] (n 19). [40] Cariou v Prince (n 30) 694, 699. [41] ibid. [42] Prowda (n 4). Campbell v Acuff-Rose (n 26) 569, 579. [43] Martin Wilson, Art Law and the Business of Art (Edward Elgar Publishing 2019) 11. [44] Emily Hudson, ‘The pastiche exception in copyright law: a case of mashed-up drafting?’ (2017) 4 IPQ 362. [45] ibid 346. [46] ibid 366. [47] ibid 365.