Richard Prince ordered to destroy lucrative artwork in copyright breach

Hi folks,

Although an appeal may yet follow, justice served?

http://www.guardian.co.uk/world/2011/mar/23/richard-prince-artwork-copyright-breach

Cheers,
Bart

Another New York gallery owner, Christiane Celle, cancelled a Cariou show, saying she did not want to exhibit work already shown at another gallery.

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One of the things that I don't understand is the attitude of the gallery... Although Carriou was the creator of the images, the gallery reject them because they already have been "seen" elsewhere. So in a sense, honesty, creativity, invention, doesn't pay, better copy in the safeness of your studio and make the right connections to be the first on the "market".


Prince said

"I had limited technical skills regarding the camera. Actually, I had no skills … I used a cheap commercial laboratory to blow up the pictures … I never went in a darkroom."

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At least something true.

Sandrine Bascouert said:

One of the things that I don't understand is the attitude of the gallery... Although Carriou was the creator of the images, the gallery reject them because they already have been "seen" elsewhere. So in a sense, honesty, creativity, invention, doesn't pay, better copy in the safeness of your studio and make the right connections to be the first on the "market".

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Hi Sandrine,

Indeed, but maybe the word "lucrative" says it all ...

Cheers,
Bart

Bart_van_der_Wolf said:

Hi Sandrine,

Indeed, but maybe the word "lucrative" says it all ...

Cheers,
Bart

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Too obvious for me to spot

Bart,

What's important is that this case might set a precedent to reverse Prince's already established "authority" in having the right to copy other folks work and sign them, (as Duchamp did with his urinals. (When, eventually, the art world fell for his silliness, he simply authorized more from the hardware depot and they got a signature to make even more money and laughter!)

Now, Prince's self-appointed rights to plagiarize have been challenged. Let's hope it stands up to appeal. I'm frightened that too many owners of his work will rush to testify how "important his "Art" is to posterity"!

Asher

Yeah Bart, I think justice is being served.

I mean I'm O.K with 'artistes' who can seemingly hoodwink the rich punters into believing that their work is somehow exceptional or poignant or noteworthy or conveys some great vision - even though it might look like completely naff to me but when they use someone elses talent (and some of those images by Cariou certainly look like more than just documentation style images) and don't have the decency to ask permission of the creator, then they deserve whatever wrath comes their way. And in this instance it's legal wrath (a particularly nasty kind).

This knob wants to show his arrogance (that must be his artistic schtick right?), well he showed his arrogant hand and had his bluff called.

Tear 'im down I say!

Andy brown said:

This knob wants to show his arrogance (that must be his artistic schtick right?), well he showed his arrogant hand and had his bluff called.

Tear 'im down I say!

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Andy,

But the judge appears to be allowing Prince (and his pimp Gallery manager), to keep some $6-10 million n sales! Why was this not simply transferred to the original artist. It's one thing to be proven right, even better to get to have the money!

Asher

May I ask an embarrassing question? Patrick Cariou photographed rasta people in Jamaica and is now selling the portraits "lucratively". How much money did these rasta people make in this story?

Who is really profiting from whom in the chain of even: making oneself look rasta - taking pictures of the rasta - publishing pictures - making collages with the pictures - hanging the collages in a gallery - taking pictures of the collages - using those pictures to report the event in the press...

Each of these step is a voluntary decision by the persons involved, and can thus be constructed as step in the artistic process or the sale of the artistic product.

Copyright law is complex and rather arbitrary. Patrick Cariou took pictures in Jamaica, and (I guess), the models don't get a dime because the law discounts the efforts of the models to look as they do and assigns the value to the photographer. Had he taken the photographs in his own country (France), things would be different and the models rights would be recognized. Then Patrick Cariou's pictures are used to create another work in New York, and the US law rules that Patrick Cariou bears creative right. In the next chain of event, you see the images in the press and the law decides that reporters can do that without Mr Cariou's or Mr Prince's agreement.

So tell me: which is right and which is wrong?

Jerome Marot said:

May I ask an embarrassing question? Patrick Cariou photographed rasta people in Jamaica and is now selling the portraits "lucratively". How much money did these rasta people make in this story?

Who is really profiting from whom in the chain of even: making oneself look rasta - taking pictures of the rasta - publishing pictures - making collages with the pictures - hanging the collages in a gallery - taking pictures of the collages - using those pictures to report the event in the press...

Each of these step is a voluntary decision by the persons involved, and can thus be constructed as step in the artistic process or the sale of the artistic product.

Copyright law is complex and rather arbitrary. Patrick Cariou took pictures in Jamaica, and (I guess), the models don't get a dime because the law discounts the efforts of the models to look as they do and assigns the value to the photographer. Had he taken the photographs in his own country (France), things would be different and the models rights would be recognized. Then Patrick Cariou's pictures are used to create another work in New York, and the US law rules that Patrick Cariou bears creative right. In the next chain of event, you see the images in the press and the law decides that reporters can do that without Mr Cariou's or Mr Prince's agreement.

So tell me: which is right and which is wrong?

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Obviously the French are wrong! Look, they don't even appreciate California sparkling wines being called Champagne, LOL! Come to thing of it, we make some of the best French wines on the planet!

France has special deference for the models and then that's a bonus. Models who want that can go to France. Generally, models are replaceable but the makeup artist is not, LOL! Who ever thinks of crediting him or her? I wonder, in France if the hair stylist, the set designer, the lighting engineer or the digital retoucher get acknowledged in creative rights? That would be interesting to me. Then in Annie Leibovitz work, what percentage would she be left with, LOL?

I recently photographed a model, just test pictures for what was going to be nude shoot. I start with her wrapped and see how she works. Well, to my consternation, she came up with a consent form where she was a major author in my work and I would have limited rights! Apparently, she has had this arrangement posing for painters! So, yes, I can imagine some models might want to carve out royalties beyond a sitting fee. If I was sufficiently inspired, that might make sense. However, as Helmut Newton argued, the models do what I want and they are just there for that, nothing else. Under those narrow conditions, payment for the professional work is all that's required. I don't think Stieglitz paid Georgia O'keeffein the many pictures he took of her!

Asher

Jerome Marot said:

May I ask an embarrassing question? Patrick Cariou photographed rasta people in Jamaica and is now selling the portraits "lucratively". How much money did these rasta people make in this story?

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Hi Jerome,

Not embarrasing at all. The Rastafari probably got nothing, maybe a small print of their portrait, maybe they only signed a release form, or smoked a joint together. We don't know.

What we do know is that these portraits were protected by copyright. Using a copy of those portraits and slightly (if any) modifying them without consent as one's own original work, is considered a violation of that copyright. The mystery is why it took so long to recognize that simple fact.

Copyright law describes a few situations/exceptions where one can use another person's work without obtaining permission from the copyright holder, the copies we're talking about in the Richard Prince case are not covered by those exceptions.

Who is really profiting from whom in the chain of even: making oneself look rasta - taking pictures of the rasta - publishing pictures - making collages with the pictures - hanging the collages in a gallery - taking pictures of the collages - using those pictures to report the event in the press...

Each of these step is a voluntary decision by the persons involved, and can thus be constructed as step in the artistic process or the sale of the artistic product.

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The chain of events is not the object of the copyright law, the individual links may be. An individual original work, expressed in a tangible form, can be copyrighted, or not. Not everything is protected by copyright, some things are even explicitly exempt (e.g. most 'objects' that can be photographed from/in public space).

So tell me: which is right and which is wrong?

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The judge is always right, unless it's decided (in an appeal) that he was wrong. He/she has the final say in the matter.

Cheers,
Bart

@Bart:
My question was not what is legal and what is not. I know that part. My question was there to make you realise that there is a problem with copyright law.

@Asher:

The law in France gives special rights to one's image, and this is the part which protects the model. For make-up, lights or... photography, it tries to assess the level of creativity. If you take pictures on command (e.g. for a catalogue), you do not have the same rights than if you take pictures because you had this idea in your head. Same goes for a make-up and lighting artist. For example, you will not sell night pictures of the Eiffel tower without authorisation ($...), because there is a copyright on the lightning as an artistic creation. Case won in court.

The tower itself is old enough for its copyright to have lapsed, so day pictures are OK.


Now, I am glad that someone cited Duchamp's urinal, because it is what changed everything. Prior to that, copyright required a level of "artistic creativity". Duchamp made, on purpose, this level effectively impossible to measure and that is the day when copyright law became inconsistent. Someone must have created this urinal as a sculpture for its manufacturing to be possible, yet that person was denied of its rights. You can put an urinal in a museum and it is considered your work, because no creating process is assigned to making the factory molds. OTOH, if the urinal was designed by Phillipe Stark, Duchamp could not have claimed it as his.

Jerome Marot said:

@Bart:
My question was not what is legal and what is not. I know that part. My question was there to make you realise that there is a problem with copyright law.

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I don't agree there is a problem with the law itself. The law is pretty clear on most things, and logical if studied in enough detail. It starts by defining an "original work of art". Most of the problem cases can be disqualified by that alone. The problem you presumably refer to is a more fundamental issue, not just with this law. The recognition of or respect for Intellectual Property, not it's definition.

The European versions of copyright law have more to do with protecting intellectual property, whereas other (notably Anglo Saxon) versions are more heavy handed about protecting economicial interests. In the original Berne Convention version that was clear enough, although there were necessary adjustments for new tangible forms of IP and methods of distribution.

Then there were also countries trying to bend/amend the definitions, and there are countries that offer little protection whatsoever. These are the ones that create a potential problem, where none was originally.

Cheers,
Bart

If you want to see it that way: it is the definition of what is an "original work of art" which was changed by the publication of Duchamp's urinal.

Jerome Marot said:

If you want to see it that way: it is the definition of what is an "original work of art" which was changed by the publication of Duchamp's urinal.

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Hi Jerome,

The issue you raise is more about "what is art", a question often asked, never answered satisfactorily (otherwise there would be no need to keep asking).

Duchamp in fact made a mockery of art, in the spirit of the "anti-art" Dada-ist style. Calling a urinal a fountain, and by placing it at a 90 degree orientation, doesn't constitute art. That's what he wanted to show, but the silly art elite didn't understand it as criticism, as a mirror. He did trick them by using a pseudonym, otherwise it would have been too clear that he was making fun of the 'elite' and the concept of art).

Cheers,
Bart

The question of what is art (or what is "a creation", whih is basically the same thing for the purpose of copyright protection) and, hence, what is not art is central in copyright law. Copyright protects what is art and does not protect what is not art.

I think that you are underestimating Duchamp. He certainly knew that he was challenging and changing the definition of art.

Jerome Marot said:

The question of what is art (or what is "a creation", whih is basically the same thing for the purpose of copyright protection) and, hence, what is not art is central in copyright law. Copyright protects what is art and does not protect what is not art.

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Hi Jerome,

Sorry. but we apparently disagree. "Art" is not defined in the copyright law. Art is a perception, what is art to some is not art to others.

Let's take the US copyright act as an example (because most readers are from the USA).
The first five sections (101 - 105) of Chapter 1 deal with the definition and subject matter (of the US version, it may be different in other versions, one needs to check to make sure).

It speaks of "Works of authorship" (for photography e.g. (6) motion pictures and other audiovisual works), not works of art!

Section 103 deals with compilations and derivative works:

§ 103 · Subject matter of copyright:
Compilations and derivative works
(a) The subject matter of copyright as specified by section 102 includes compilations
and derivative works, but protection for a work employing preexisting
material in which copyright subsists does not extend to any part of the work in
which such material has been used unlawfully.
(b) The copyright in a compilation or derivative work extends only to the
material contributed by the author of such work, as distinguished from the preexisting
material employed in the work, and does not imply any exclusive right
in the preexisting material. The copyright in such work is independent of, and
does not affect or enlarge the scope, duration, ownership, or subsistence of, any
copyright protection in the preexisting material.

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That paragraph (b) is not what usually is an issue, additions can(!) be copyrighted on their own. It's the pre-existing material that remains copyrighted on it's own, and those (copy!)rights remains with the original author. Whether that preexisting work was used unlawfully, depends on the permission given by the original author, or on the way it is used (e.g. a review of someone's collection of works).

My reading of the Richard Prince verdict, so far, is that there was no permission for the use of the preexisting works, and its usage was therefore deemed unlawful. The original author exerted his copyright by demanding destruction of the derivatives, and the court agreed.

Cheers,
Bart

Apparently I am not making myself understood. I'll bow out of my part of the discussion here.

About the court case: you are right in your understanding of derivative works.

It's about law!

Prince's case failed on the 4 tests the judge was required to use.

"Under the Copyright law, fair use is determined using the following factors:
1. the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes; (Prince's work is commercial - he is making millions of dollars from work which is not his.)
2. the nature of the copyrighted work; (photos are copyrightable)
3. amount and substantiality of the portion used in relation to the copyrighted work as a whole; (Prince has used 100% of the original unaltered)
4. the effect of the use upon the potential market for or value of the copyrighted work. (hardest one to gauge here without more information but since his stealing does not line up with the the other 3, there is no fair use here)"

See a nice discussion here which adds the extra issue of what Prince is, a memorabilia collector, not a creative artist.

As to Duchamp, for sure he was making fun, mocking the establishment.

Asher