June 15, 2011 - Copyright and Fine Art Presentation Tomorrow at National Arts Club

I hope that you will join me tomorrow night at this event, there is no charge for attendance.


National Arts Club
The Photography Committee Presents

Copyright and Fine Art
Wednesday, June 15, 8 PM

15 Gramercy Park South (east of Park Avenue South @ 20th Street
Fine art and the copyright laws have always had an uneasy relationship. Artists should be free to use their surroundings as raw material for free expression. But shouldn’t artists get paid for their creativity? And what happens when we live in a media world and our surroundings are locked down by copyright? Should an artist have the power to use the courts to seize and destroy another artist’s work? Join us as attorney Ray Dowd takes us on a visually-driven exploration of creativity at the cutting edge and the fate of “appropriation artist” Richard Prince in the ongoing lawsuit with French photographer Patrick Cariou.

Raymond J. Dowd is the author of Copyright Litigation Handbook (West 5th Ed. 2010). He is Co-Chair of the Art Litigation and Dispute Resolution Institute at the New York County Lawyers’ Association. He is an attorney in private practice with Dunnington, Bartholow & Miller LLP a firm with practices in trusts & estates, litigation, copyright, trademark and art law.



 http://www.dunnington.com/rdowd_bio.html
 Purchase Copyright Litigation Handbook 2010 by Raymond J. Dowd from West here  

Fair Use Fridays: Richard Prince Redux: Can Appropriation Art Be Stolen? Or De-Appropriated With An Eraser?

Gregorg is calling his lawyer because someone is stealing his Richard Prince appropriation.

More on Richard Prince and Appropriation art here and here. 

Cat Weaver's Garden Sans Cariou.  Stealing the stolen stuff out of a thief's misappropriation?   Full story on Hyperallergic here.  

My take on Cariou v Prince here and here.


 http://www.dunnington.com/rdowd_bio.html
 Purchase Copyright Litigation Handbook 2010 by Raymond J. Dowd from West here  

Fair Use Doctrine Dead? A Fair Use Fridays Moment of Silence for Richard Prince

We gaze in awe at the work of Richard Prince.  This photograph of a Marlboro Man advertisement taken by another photographer broke world auction records for a photograph.  Story here.   You can see that Richard Prince claims a copyright in the photograph that he "appropriated" from Jim Krantz.

My post earlier this week here on Patrick Cariou winning his lawsuit against Richard Prince got the most hits of any post I have ever made on this blog, and in a very short period of time.

The entire contemporary art community will be BLOWN AWAY by Judge Batts' decision denying Prince's use the protection of the fair use doctrine.   This challenges an entire category of art known as appropriation art.

L.H.O.O.Q. by Marcel Duchamp

Others are delighted at Prince's discomfiture.   I am troubled.   Fine art, truly fine art in an art gallery, is a place where a copyrighted work becomes a fetish object, a tribute, a decontextualized thing revealing a new meaning.   The urinal of Marcel Duchamp.   The Brillo Box of Andy Warhol.   Both utilitarian objects made by others and fetishized by the artists.

And look at L.H.O.O.Q. - nothing original in the execution, but the Mona Lisa was in the public domain at the time.   Prince is blatantly stealing.   Plagiarists take the words of others and try to make you believe that they have crafted them.   But Prince's cutouts from advertising, porn and outlaw biker magazines never misled the consumer.  

But somewhere, something bothers me about shutting a highly respected fine artist down completely and burning his works when the first sale doctrine would permit him to buy a copy, modify it and resell it.   When the First Amendment lets even repulsive speech be heard and the contemporary art world says it is art, I have a problem with the government burning it.

To me, an original work of fine art properly labeled as such by a new artist is almost pure speech - or in some way pure idea - even if it includes major appropriations.  Things change when the artwork is widely reproduced.  When the consumers are paying tens of thousands for Prince to take something no one is interested in, put his spin on it, and add value.   Prince's "appropriation" added ten million dollars worth of value to a pile of books.   Everyone knew he didn't create the original.

This is not a question of consumers being defrauded, these are wealthy ultrasophisticates on the cutting edge who are the purchasers - surrounded by the top art advisers and critics -if these people feel that Prince's value added is that great, what is the harm in letting them indulge, as long as Prince legally purchased the original books?   In fact, Prince's prices will probably soar - scarcity and scandal drive art prices up.

From a semiotic perspective, isn't Prince simply holding up a mirror to people who may not want to look at themselves or their art as art in the hands of another?   And if your message is mirror-like, is it less valid?   And if you don't have the verbal skills to articulate what you are doing, is that any less a mirror?

Richard Pettibone's Andy Warhol's Black Bean Soup (1968) (1987)

Damien Hirst Hymn

Vik Muniz, Double Mona Lisa, After Warhol (Peanut Butter & Jelly)

Papeschi's NaziSexyMouse

Or if Prince adds a subtle layer of meaning by decontextualizing the original, so what?  Who is hurt?  When Jacob the Jeweler wants to put extra diamonds on your Rolex, is society really hurt by this?

Brillo shouldn't take the boxes back from Warhol, the Keith Haring subway sketches that were illegal now rightly sell in the galleries, Duchamp probably stole the urinal.    Prince's "thefts" are not so far off those marks.

Here are some of the originals compared with infringements:

Patrick Cariou's reaction?   "Destroying art if you don't like it, that's something you have to think extremely deeply about."  Patrick Cariou to ArtInfo/HuffPost, full interview here.


 http://www.dunnington.com/rdowd_bio.html
 Purchase Copyright Litigation Handbook 2010 by Raymond J. Dowd from West here  

Art Litigation: Artist Richard Prince and Gagosian Gallery Lose Copyright Infringement Case

Work from Prince's infringing series incorporating Cariou's photographs



In Cariou v. Richard Prince, Gagosian Gallery, et al 08 CV 11327 (S.D.N.Y. March 18, 2011)(Batts, J.), the court issued a decision finding Richard Prince's artworks to be copyright infringements.   Prince, known as an "appropriation artist" took Cariou's photographs from a book called Yes, Rasta.

The opinion is noteworthy and will basically EXPLODE the contemporary art world, which has invested heavily in Richard Prince and his appropriations. The opinion notes that Prince thinks his artworks are pretty meaningless, but the owners of his artworks will probably mobilize art and cultural critics to supply a deeper meaning pronto.    Perhaps in future litigation Prince will become more articulate about the nature of his artistic vision, as did artist Jeff Koons whose early losses have now been turned into wins based in part by affidavits certifying that his art does indeed have a message more pleasing to judicial ears.

More on this case, including images here.   More on appropriation art here.  A Photo Editor opines here. 

Clancco is outraged  delighted that the decision includes an order to impound and destroy Richard Prince's artworks, which Larry Gagosian made over $10 million dollars in selling, read Clancco here.

Does the price of a Prince work go up after this decision?

Here is the decision:

Cariou v Richard Prince

March 22, 2011 update:

More commentary from Ruling Imagination here.

 http://www.dunnington.com/rdowd_bio.html
 Purchase Copyright Litigation Handbook 2010 by Raymond J. Dowd from West here  

Jeff Koons, Richard Prince and Copyright Infringement

A good article in the Wall Street Journal here, with good images for comparison, on the claim of photographer Patrick Cariou that artist Richard Prince had ripped him off. It's not the first time that a photographer has been upset over Prince's actions. Someone sent me a NY Times article on the original photographer who did the Marlboro Man campaigns that Prince copied.

Now I know Cariou's name - Prince has made him and his work more famous, and the two will probably make more money in their respective careers following the tiff than before, no matter what the end result.

The WSJ article discusses cases involving Jeff Koons, the puppies case and the more recent Niagara case (image here). I met Jeff Koons last night for the first time at the National Arts Club where he was being presented with a medal.

We discussed his litigations, and he said that they have really changed his work.

In a visual online world where "free speech" for a visual artist may include defacing the work of another, we are going to see a lot of boundaries changing. What's fair today may not be fair tomorrow.

Appropriation Art and Wikipedia

In preparing for a presentation I gave last week at the National Arts Club on "Copyright and Creativity" I found some great wikipedia entries that were very helpful. The wikipedia entry for Appropriation (art) is found here. Also the Art Intervention entry is found here.

Both movements involve using, modifiying, stealing or vandalizing someone else's artwork. Sometimes litigation ensues.

I have inserted Marcel Duchamps' L.H.O.O.Q. (1919), where he puts a mustache and goatee on the Mona Lisa.

Contemporary artists continue to annoy, harass, steal, disrupt and dismay us. Decades later, their works will be valued and celebrated. My favorite is http://www.whitneybiennial.com/. The artist Miltos Manetas stole the Whitney's name and a very good domain name and used it to build a version of the Whitney's 2002 Biennial that included his web-based artworks. He told the press that he was going to surround the Biennial with U-haul trucks with screens showing web-based art that he likes. He never did, but he created a huge uproar.

The social or artistic value of a work that borrows so heavily from another's work is not always apparent. For example, the "appropriation artist" Richard Prince photographed Marlboro advertisements, took out the wording of the advertisement, and blew up the photographs without any other modifications. Pure copyright infringement? One of his photographs reached a world record for photography when it auctioned in 2005 for over $1.2 million.

The artist Jeff Koons (who recently won a case against a photographer whose image he placed in a painted collage) has similarly caused scandal, litigation, and has eventually reaped tremendous financial rewards for reinterpretations - or outright taking - of works under copyright.