A new chapter in the Prince v. Cariou copyright case opened this morning when a three-judge panel heard oral arguments from both sides in Richard Prince and Gagosian Gallery’s appeal in the case against photographer Patrick Cariou. Cariou was the resounding winner of round one after a judge ruled that Prince’s “Canal Zone” series, appropriated from Cariou’s “Yes, Rasta” book, was not sufficiently transformative to merit “fair use.”
In many ways, the future of appropriation art (and Google’s image search, possibly) rests on the outcome of this case. And if today’s arguments are any indication, neither side is going to go down without a fight. From the report, it seems that the judges were more swayed by Prince’s lawyers than Cariou’s, but no one can be sure until the decision is handed down in the next few months. However, the discussion produced quite the narrative. As such, may I present four ways to make a court case interesting, based on the Art in America account of proceedings:
Start with $$$ …and… $
Prince’s lawyers argued that the U.S. District Court judge Deborah Batts’s decision that Prince’s work wasn’t transformative because it did not comment on the original was fundamentally flawed. They argued that Prince’s market power alone was enough to make the work transformative: in other words, the works were intellectually valuable because they were monetarily valuable.
Add a Healthy Dose of Irony
Cariou’s representation, Daniel J. Brooks, on the other hand, argued that Prince didn’t have to take Cariou’s images without consent for his appropriated works, as other, similar images existed. The argument is ironic, but perhaps appropriate for a lawsuit based on defining degrees of similarity.
Throw Terrorism Into the Mix for Fun
The judges asked Brooks if it was actually in the public interest to ask for an injunction to destroy Prince’s works (which was granted by Batts — Cariou has the right to dispose of the 21 “Canal Zone” works if he wants to). Some serious names were thrown around, to dramatic effect. Brian Boucher reports: ”‘It seems like something that would appeal to the Huns or the Taliban,’ Judge Jackson observed. // Brooks pointed out that his client’s father was in the French Resistance and that he does not support destruction of any artwork, which is for him redolent of Nazi bookburning.” Later, one of Prince’s lawyers noted, cheekily, that while Cariou may not purport to support the destruction of art, someone asked for that injunction.
And Finally, Diss Those Brooklyn Hipsters
The best part of all, though, was when one of the judges showed some knowledge of the art market (or simply an annoyingly narrow sense of Manhattan superiority that happened to apply to the art market) and delivered a scathing repudiation of Brooklyn’s economic standing in the art world. Check out this rebuff:
“Bringing up the market is a clear loser for you,” Judge Parker said to Brooks, who confirmed that Cariou’s prints sold for a few thousand Euro, while Prince’s paintings sold for millions. “You sold to a totally different audience, you’ve admitted that not many of the books were sold, you sold them out of a warehouse in Dumbo, and that the book was out of print. Prince was selling to a wealthier crowd, and on this side of the river.” The allusion to a more elevated marketplace in Manhattan brought laughs from the courtroom.
From the looks of the report, things are not looking good for Cariou. They are, however, looking great for those of us who want to go hear this case argued in front of the Supreme Court. Oh, and also great for the bottom lines of all lawyers involved.