The latest in a line of decisions interpreting what constitutes fair use under copyright law came from the Southern District of New York in March in the case of Cariou v. Prince and is now on appeal to the Second Circuit Court of Appeals.
The decision by U.S. District Court Judge Deborah A. Batts found well-known appropriation artist/painter Richard Prince could not claim fair use of photographs he used in paintings displayed at the Gagosian Gallery from photographer Patrick Cariou. Prince claimed his work constituted original expression, but Judge Batts disagreed.
“Usually what an appropriation artist will do is modify [borrowed material] in some way to make it original to the new artist,” said Jessica Marten, an assistant curator at Rochester Memorial Art Gallery.
Marten said the Prince case, along with other interpretations, has broad implications for artists as to what constitutes fair use and original expression.
“It’s very conceptual and if a judge can’t conceptualize the change I can see where that decision could be made,” Marten said.
Marten noted Prince’s well known appropriation art work doesn’t drastically change an image and although artists might notice a subtle difference in the use of the borrowed work, judges may not. With an abundance of artists in the district, the Southern District of New York is a common venue for art issue-related cases.
“Different courts look at it in different ways,” said Memorial Art Gallery librarian and webmaster Lu Harper, “but for somebody working in this field it’s good to know what you can and can’t do. Fair use is a moving target.”
Prince used many of Cariou’s photographs in a collage. Some of them were used in their entirety, some were partially cropped and some were partially painted over. The court found most of Prince’s work using Cariou’s photographs lacked “transformative content,” a fair use standard set forth by the U.S. Supreme Court in Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994).
The Gagosian Gallery, where Prince exhibited the work, was also named as a defendant. The court found the defendants violated all provisions of the Copyright Act, 17 U.S.C. sec. 107. Harper said she must be conscious of complying with the Copyright Act when placing artist materials from the art gallery online.
Although appropriation art has been around at least as long as Picasso in the early 20th century (and later used by Andy Warhol), the issues it presents have only come to light in the past decade or so.
“I don’t see appropriation art going away any time soon as it is partially fueled by the deluge of images we experience everyday thanks to technology, the internet and mass-media,” Marten noted. “With iPads and other portable devices giving us greater and more casual access to images, the way we think about images, ownership and art will necessarily continue to change.”
Although Harper said the Memorial Art Gallery doesn’t display a great deal of appropriation art, it just recently put a piece by New York City-based artist Devorah Sperber on display in the exhibition corridor near the Lockhart Gallery. Sperber used thousands of spools of thread to depict Grant Wood’s iconic painting, American Gothic.