“He’s copying me!”
Many have shouted out that phrase during third grade math class.
The wandering eyes in question face ten minutes in the time-out chair, hopefully learning a lesson.
However, for artists, copying is very different and much more complicated. In art, appropriation, or the use of borrowed elements in the creation of new works, is a common and generally accepted practice. Many notable artists have practiced the art of appropriation – Robert Rauschenberg, Andy Warhol, and Sherrie Levine to name a few.
But to what extent can artists deem the work of another’s as their own?
And when does appropriation shift from the canvas to the court?
When artists push the boundaries of fair use, a new wave of concerns about copyright and originality come to the fore.
The ongoing copyright case between Richard Prince, esteemed painter and photographer, and Patrick Cariou, understated photographer, highlights the controversial subject of fair use.
Under the “fair use” doctrine, a creator exercises a non-competitive right to use of copyrighted material without compensation to the original creator. Some occasions when use is considered fair include news reporting, criticism or comment, and parody.
In 2007, Prince’s body of work entitled “Canal Zone” contained at least 41 of Cariou’s photographs from the book Yes, Rasta.
Left, a photo of a Rastafarian from Patrick Cariou's "Yes, Rasta" and, right, a painting from Prince's Canal Zone series.
When Prince’s artwork generated millions of dollars in sales at New York City’s Gagosian Gallery Inc., Cariou’s gallery opening, promoting his Yes, Rasta photographs was cancelled due to the gallery owner’s unwillingness to display photographs that “had been done already” by Richard Prince.
The result? Cariou sued Prince, Gagosian Gallery, and Lawrence Gagosian for copyright infringement.
And so began the 2008 Prince v. Cariou case, currently at a federal appeals court.
A federal judge sided with Patrick Cariou, ordering Prince’s unsold works to be either destroyed or impounded. Prince appealed, backed by an array of museums, art directors, and artist advocates like the Andy Warhol Foundation for the Visual Arts.
The court declared Prince’s works purely commercial, lacking any reference to Cariou’s originals and having failed to transform them. Prince’s fair use defense deteriorated.
Prince’s attorney countered that the works were, in fact, transformative in that they used a different medium, conveyed a new message, and appealed to different audiences than Cariou’s initial pieces.
With Prince v. Cariou still under debate, it’s only a matter of time before Cariou blurts out in the courtroom: “He’s copying me!”
- Ava Cotlowitz
