Recently the artist Richard Prince disclaimed credit for one of his so-called Instagram portraits, calling it “fake art.” Unsurprisingly, it was the one commissioned by and sold to Ivanka Trump. The influential critic Jerry Saltz in Vulture immediately gave this act of attempted market manipulation high praise, announcing that Prince had pioneered a new form of political resistance. The art press, largely New York-centered and liberal, followed suit with a chorus of approval and revolutionary zeal.
Lost in the hyperbolic self-congratulation and warmed-over Dadaism was the real controversy embroiling Prince: Are creators (copyright statute calls them authors) entitled to the fruits of their hard work, imagination, and creativity? The cultural left for which Prince is the poster boy says no and brandishes the First Amendment to defeat such legitimate claims.
A number of pending court decisions in which Prince is a defendant mark how far its influence extends. The outcomes of these cases will affect authors of all stripes, who, unable to call on Prince’s star power to inflate the prices of their work, may not find his antics particularly hilarious.
Two pending cases in New York Southern District Court (with two more possibly on their way from California) have lately been brought by victims of Prince’s appropriations. They involve works that first appeared in an exhibition grandiosely titled “New Portraits” at the Gagosian Gallery in 2014. The works consisted of ink-jet enlargements of users’ posts uploaded onto the Instagram website. Prince helped himself to these photographs, adding comments in a hip-sounding, nonsense patois and emojis in the space for user comments before printing them in a much larger size.
The photographs he chose were taken by fine-art and commercial photographers and, in one case, a make-up artist. In other words, they are people with their own wares to sell. That is, potential plaintiffs. Later, celebrities, including Ivanka Trump, began to commission Prince to produce his signature copies of their Instagram cameos, reportedly in some cases (although not hers) for as much as $90,000 per work.
Yet the narcissism and cult of the celebrity behind these commissions, however nauseous, are not the crux of the legal controversy. The issue before the district court is, by and large, one of something called “fair use.” Technical specifics aside, fair use is a judicial doctrine that seeks to balance two opposing constitutional rights: that of citizens, on the one hand, to own their original creations and stipulate how others can use them; and, on the other, to express themselves freely, which sometimes, as in a quotation, requires reproducing another’s material.
Copyright law and its exception, fair use, have undergone a long, complex, and nuanced development in the common law responding to these conflicting rights. But as with so many of our institutions, in the last decades, this area of the law has become politicized.
The Left Has Shanghaied Copyright
To read a sampling of current American law review articles on the topic, it is easy to form the impression that copyright and trademark protections comprise this nation’s gravest injustice. The call by legal academics to get rid of almost all intellectual-property protection at first seems like a reversal of the Left’s usual promotion of the nanny state. Conservatives often mistake the “less regulation” part of their message as hospitable to their worldviews. But they err. As recent cases show, the progressive strategy of “depropertization” often merely leads to government running interference for favored elites.
In the Left’s war on authorship, these articles are the ground game. Aimed at influencing policy, opponents of copyright hammer away at the notion that creativity is a communal resource. Legal grants of “monopoly” in artworks suppress the free speech of others. Ownership privileges thwart the “flourishing” of inner-city children.
We don’t see them advocating for freelance photographers or graphics professionals or provincial watercolorists. That is because these socialistic thinkers disdain the working artist. And nowhere is their unspoken disrespect for the yeoman author more evident than in the arena of fair use. But wait—how did this ivy-cloistered radicalism migrate to the federal courts? Well, it didn’t happen all at once. Nor easily.
Judges are not renowned for adjudicating matters of originality. They can be tone-deaf to aesthetic distinctions, to say nothing of the imported French philosophy undergirding postmodernism that dominates university classrooms. No less a jurist than Oliver Wendell Holmes warned in 1903, “It would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations, outside of the narrowest and most obvious limits.” (That, in the very same decision, he displayed a masterful knowledge of Renaissance and Modernist painting only increases our admiration for his intellectual abstinence.)
Art Is Whatever Some Dude Thinks It Is
Knowing their limits, judges go out of their way not to put themselves in the role of art critic or historian. In confronting issues of originality, they take as their yardstick the perspective of the “ordinary observer.” But what if the average observer is at sea?
As avant-garde art in the second half of the twentieth century grew to cultural prominence, this was, indeed, the orientation of many museumgoers. The law was no help. It lacked the tools to comprehend the avant-garde’s concept-driven output. Yet adapting the staid and slow-moving machinery of copyright to its innovations was unavoidable. A turning point came in 1990.
In that year, Pierre Nelson Leval, a judge on the U.S. Court of Appeals for the Second Circuit, originally a Bill Clinton appointee to the U.S. District Court in the Southern District, published an article in the Harvard Law Review. It put forth a way for American jurisprudence to analyze “art.” It was a bridge between worlds.
I emphasize “art” as opposed to art. The difference? Consider: When is a toilet a functional item present in most households, and when is it “art?” Answer: When someone like Marcel Duchamp takes one, calls it Fountain, and enters it in a high-stakes art competition.
Second Question: When is a gold-plated toilet “art?” Answer: When someone like Sherrie Levine decades later harnesses the period of art history for which Fountain has become emblematic and sells her resplendent urinal at Christie’s for millions of dollars. In both cases, the amount of physical change to the object is minimal or non-existent. But something has happened. Judge Leval applied to this n-factor a name: Transformativeness.
Fast-forward a few decades and a number of related U.S. Supreme Court decisions. In place of a more prosaic, common-sense approach to works that are similar and suggest unlawful copying, you get a test that seems built for appropriation art. Transformativeness as it stands today can be summed up in this oft-cited, Leval-derived standard: “[T]o qualify as a fair use, a new work generally must alter the original with ‘new expression, meaning or message.’” The internally quoted phrase cites a Supreme Court precedent, but the overall statement was made by the Second Circuit in a game-changing 2013 appellate decision. Overturning the Southern District, the court awarded fair-use status to the alleged infringements of, yep, Richard Prince.
Is Prince Playing the Second Circuit?
The New Portraits Prince exhibited a year after Cariou v. Prince were not an adventure in superficiality, or not that exclusively. By design or otherwise, these big-ticket copies positioned themselves at the very edge of the permissive standard of fair use articulated by Cariou. They mounted a challenge to the trial court—for it was inevitable Prince would be sued in the same court that had just been reversed in its earlier ruling against him.
The challenge was, in effect, to dare the recently corrected trial court to not find added value in these nearly literal reproductions of other people’s images. The operative word here is nearly. Since anything Prince touched would have an aura of novelty simply by virtue of his notoriety, under the new Cariou standard, the merest sliver of alteration in any piece he produced would likely insulate it and him from charges of infringement. This would be the case no matter how brazen his taking, or feckless the work’s “repurposing.” Witness the Instagram replicas. If the “new message” these tweaked copies disseminated were nil or unredeeming, armies of critics would attest otherwise.
Celebrities like Beyoncé, Jay-Z, Robert De Niro, and Angelina Jolie would also come out in force for his openings as they did for his Cariou-derived series—a fact that in Cariou seems to have greatly impressed the Second Circuit.
Don’t get me wrong. I like Prince’s work. I like it in spite of myself. It makes me laugh. If celebrities want branded mementos of themselves, I couldn’t care less. But I also like traditional art, even if it is considered too sentimental or not iconoclastic enough to be featured at the Guggenheim Museum. And this cultural trove is what’s at risk.
The dirty truth is that a Prince victory in these cases could pretty much guarantee him free reign, at least in New York, which is, for the art world, an all-important jurisdiction. After such a victory, the works of hard-working authors might well be grist for any swank appropriationist’s mill. For the postmodern ideologues, who view populist culture as raw material to feed their predatory abstractions, this is no biggie. Indeed, it is being on the right side of history.
Sticking It to the Working Artist
Patrick Cariou was unfamous before Prince, browsing in a Caribbean hotel gift shop, stumbled upon his book of photographs of Jamaican Rastafarians. He lived in the jungle with his subjects over a period of six years while composing his studies. It took Prince an afternoon or thereabouts to take them apart and reuse them, while still retaining and leveraging their magic.
Prince has indicated he believed his imagistic imperialism was justified because he elevated Cariou’s modest portraits to a higher plane. After all, financially, Cariou’s body of work was “unsuccessful.” But if it was such a failure, why was Prince attracted to it in the first place?
Among the four cases mentioned, one of the plaintiffs is a make-up artist. Another is a fine-art photographer. Another is a photo journalist who trails rock-and-roll musicians on tour. Presumably, they all hustle for a living. Likely, they just couldn’t allow themselves to stand by while Prince exploited their sweat equity and made hay of their portfolios.
But these individuals and others who perhaps cannot afford legal representation are never mentioned by copyright’s institutional opposition. Their First Amendment rights mean little. They may soon become the collateral damage of a progressive elite that prizes novelty, no matter how empty, above almost all other civilized accomplishments.
In the meantime, Prince has been known on more than one occasion to gripe on social media about being hauled into court. He disparages the stupid lawyers and judges who are inconveniencing him and mocks the legal process. When, that is, he isn’t parodying it: at the New Portraits exhibition, he posted a copyright notice warning visitors they could not reproduce without permission the works on display!
The self-proclaimed anti-authoritarian progressive art world eats this up. They smirk at his wisecracks and treat his scorn as exemplary. For them, the courts are but the newest venue for Prince’s guerilla theater. Indeed, the triumph of the postmodernist ethos has been so complete, where else remains?
So now, backed by the boosterism of the art establishment, the august court of appeals has fallen under postmodernism’s hypnotic sway. Justice Holme’s sobriety has succumbed to the giddiness of Hollywood. Prince is so confident of his prerogatives he has made an heroic gesture of what, in his appropriation saga, seems like nothing more than another self-serving turn of the wheel.
It makes you wonder what message the court’s “new expression, meaning or message” is sending, after all.