No sooner had one famous copyright dispute in the visual arts been resolved than another comes down the pike. In rapid succession, the street artist Shephard Fairey and the “appropriation” artist Richard Prince have been found culpable of ripping-off other people’s art to make their own.
In mid-March, Fairey settled his final disputes with the Associated Press, whose photo he used without permission in his celebrated Barack Obama “Hope” poster of 2008. Then on March 18 a New York judge ordered Prince to turn over art work that copied French photographer Patrick Cariou’s original images of Rastafarians, photos that Cariou laboriously took in Jamaica.
In the latter case, the court may allow the destruction of Prince’s art works. The court also told art collectors who bought the Prince works through the up-scale Gargosian Gallery (amounting to $10.5 million in sales) to cease displaying them. With so much at stake, Prince will doubtless appeal the ruling.
In both cases, the rub is that two artists, Fairey and Prince, benefited financially by using art work created by another artist, and did so without asking permission. The U.S. Copyright Act allows for “fair use.” This is to allow for progress in arts and science by way of criticism, freedom of the press, scholarship, and education. But in both cases, Fairey and Prince, while claiming fair use, pretty much cribbed one work of art to create another work.
For centuries, legalists have recognized the “piracy” of intellectual and creative property. The Fair Use clause was added to the Copyright Act in 1976 in response to the technological revolution, which made it easy to copy and distribute other people’s works. Today, everything from book chapters to pictures are copied for educational use, but usually with permission. In its four-point test, the fair use doctrine does not accept free use of copyrighted material simply for the sake of financial profit.
The modern-day, fun-spirited piracy of art perhaps began when Marcel Duchamp put a mustache on a dime store picture of the Mona Lisa, a kind of fair use rip-off of Leonardo da Vinci. Only in the 1970s, however, did we learn about “appropriation” art. This art claims to make ironic and critical statements on the nature of art itself by reproducing or re-using other people’s works. The appropriation philosophy became more sophisticated—and market savvy.
In the recent case, Prince produced a mural-size series of works titled “Canal Zone.” The series combined photos and painting, but 41 of the photos were directly photo-copied from Cariou’s book Yes, Rasta. In the Fairey case, the silk-screen artist first sued Associated Press in 2009, saying he had the right to use their photo without permission. The AP sued back. As it became clear that Fairey was not going to win, they settled out of court: Fairey must share profits with AP, and the clothing line that uses the image must do likewise. (The AP profits will go to a distress fund for AP personnel).
Neither Fairey nor Prince can again use works by the other party, either AP or Cariou, without asking permission. This is what most people would consider the normal way of doing business. Many artists see things differently, however, as a growing number of lawsuits indicate.
The first major ruling came down in 1992, when a federal court said that artist Jeff Koons could not use another person’s photo of puppies to create a series of sculptures to be sold. Koons claimed that his sculptures were fair use “parody,” a sly commentary on the corny puppies photo. Koons lost and had to pay damages. The key legal point of the ruling—a precedent carried into the Prince case—is that fair use is about obvious “commentary” on something, not a wholesale copying to produce a new saleable product.
On the street this is called a rip-off. And yet, as the appropriation artist Andy Warhol said: “Art is what you can get away with.”
On the street this is called a rip-off. And yet, as the appropriation artist Andy Warhol said: “Art is what you can get away with.”
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