What Appropriation Means to Me and Mine
Unpacking the specific details of Patrick Cariou’s lawsuit against Richard Prince and his dealer Larry Gagosian for infringement of copyright is a complicated matter. More informed writers have already tackled it; writing for Artnet, Joy Garnett provides a great set of links to opinions from some of the different camps. She’s also continued to cover the debate on her own blog, as has Greg Allen (who has gone so far as to compile the relevant court transcripts into a book). My concern here is not to cover the legal issues, but instead to offer the view of an artist who is outside the debate.
I have always been ambivalent about appropriation as a tactic in art. As a painter who was focused on abstraction, systems, and process, I was never particularly concerned with the conceptual point being made by artists like Richard Prince or Sherie Levine. It was simply outside my practice. I also assumed that as someone who did not appropriate the works of others that their legal issues where far removed from affecting me. My sense of entitlement as someone who creates original work certainly played into this sentiment, but as the saying goes “I didn’t speak up when they came for the appropriationists…”
As with most debates where law and politics start throwing their weight around within the art world, artists will find themselves defending people or art they may not like to the benefit of a greater ideal. Mr. Prince may be an asshole, his work may be ugly, and he certainly made a lot of money selling paintings, but none of those are reasons that he should be denied protection under the law. At least part of the problem appears to be that the law is a mess. Prince and Gagosian relied on the ruling that protected Jeff Koons for their definition of fair use, a notion that seems to have been thrown out (or through) the window by Judge Batts’ ruling. Since these rulings seem to contradict one another, and because most cases of this sort get settled out of court in a manner that denies a clear legal precedent, it makes it much easier for commentators on all sides to apply their own ideas of what’s fair to the exception of actual law, and it seems like at least having a clear statute would be to everyone’s benefit. Until then individual artists, photographers, designers, and any other interested parties are going to be making it up as they go along.
This disagreement seems to mostly break down along the lines of artists as “appropriationists” and photographers and designers as “creators” (although the categories are certainly by no means set in stone). Fair use is the sticking point, with proponents of appropriation pointing to the transformative nature of their processes and the original creators claiming the rights of their original material. I believe that art should be given a wide berth from legislation and that the immense monies generated by the art market are not a reason to see art suffer unnecessary limitations.
This follows from how I parse authorship. A collector buying a Sherrie Levine rephotograph of a Walker Evans print knows they are buying a Levine. Anyone who saw the actual work at Metro Pictures cannot miss the context of Levine’s project, and certainly isn’t buying Levine’s photo in lieu buying a Walker Evans. If such “almost same” works are protected I don’t see how Prince’s works are not transformative of Cariou’s photos. The poster child for the argument that Prince hardly transformed or altered Cariou’s photos is the side by side comparison of the two images of a Rastafarian (to which Prince added Neil Young’s guitar) found at the top of Ms. Garnett’s artnet.com article. However in art the image is not the art, and the transformative nature of Mr. Prince’s enlarging, printing, collaging, and painting is a lot more evident when comparing the actual photo to the actual painting. The difference becomes even starker when you compare The Gagosian Gallery webpages that archive installation views of the exhibition. Unless the Rastafarians that Mr. Cariou spent so much time with included quite a few constantly naked women fond of striking poses from pin-ups and pornography, I don’t see how he can claim that Mr. Prince didn’t transform his original photos.
The argument I see from the other side is that a restrictive enforcement of copyright laws would not hurt art, it would only make for more “original” art and thus be good for everyone, artists and audience. As a counter-argument I’d like to propose that we look no farther than how the enforcement of copyright has affected the production of Hip Hop and sample based music. The initial music that came out of this collage aesthetic was unbelievably complex, so much so that it may be impossible to suss out all the source recordings of early tracks by Public Enemy and others. Compare that to the sonic simplicity that copyright enforcement has brought on with more recent productions as Hip Hop artists simply cannot afford to purchase the rights to a veritable library of beats to produce a single track, let alone a whole album. The differences in production and distribution between painting and music may put the comparison fundamentally unsound legal ground, but it is at least a real world example of how the production of art has been affected. In contrast those who would argue that copyright enforcement is good for art are relying on an empty platitude that sounds nice in theory but does not ring true in practice.
Truth be told, I did not care at all for the Canal Zone exhibition. I only spent the 3 minutes it took me to circumnavigate Gagosian’s Chelsea hangar and scan the works to realize I had a better uses for my time than examining Mr. Prince’s view of an apocalypse from the isle of St. Barths. But one of my central beliefs is that bad art is just as deserving of protection and respect as the art I happen like. This is all the more the case when powers of law are invoked, as they far reaching and often unintended consequences will have long term implications beyond just a disagreement of aesthetics or taste. My own work has now moved in the direction of using found or appropriated texts, something I would not have expected back when I first considered the work and strategies of Levine and Prince. As far as art is concerned, even if they say they’re only coming for the appropriationists, the effect will be on all of art.
 The adjective “obscene” may apply, depending on your own feeling.
 It is referred to as “equal protection” for a reason, it cannot only apply to nice people who make pretty work that they don’t sell.
 And apparently not much else.
 Or more accurately is the intellectual sticking point used to argue about money.
 Even if such a collector did hang a Levine in their house and claim to own a Walker Evans, it wouldn’t change the material truth about that particular photo, and the artist can’t be held responsible for such misuse.
 In form, if not in content. See Joy Garnett for a discussion on the transformative nature of Prince’s painting process in relation to Cariou’s photos in the larger context of mechanical reproduction and the Cariou v Prince & Gagosian depositions and decision for comments on Prince’s intentions and the judgment against their comment (or lack thereof) on Cariou’s originals.
 I haven’t had a good look at Cariou’s Yes Rasta book, so it’s an honest question, but my guess is that the porn is from a separate source(s).
 Or how the legal teams representing Prince and Gagosian could fail to get an actual comparison entered into the record. Or how Judge Batts could then also determine that Mr. Prince’s work is not somehow transformative or a new thing. Life is full of little mysteries like that.
 I think it’s pretty clear that I’ve chosen a side here by this point.