Brian Dupont: Artist's Texts

An artist's writings on art.

What Appropriation Means to Me and Mine

Author’s Note: The ideas explored in the essay continue in ‘On Copyright’ Parts One, Two, and Three.

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[1] selling paintings, but none of those are reasons that he should be denied protection under the law[2]. 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[3], 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[4], 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[5]. If such “almost same” works are protected I don’t see how Prince’s works are not transformative[6] 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 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[7], I don’t see how he can claim that Mr. Prince didn’t transform his original photos[8].

The argument I see from the other side[9] 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.

[1] The adjective “obscene” may apply, depending on your own feeling.

[2] 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.

[3] And apparently not much else.

[4] Or more accurately is the intellectual sticking point used to argue about money.

[5] 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.

[6] 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.

[7] 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).

[8] 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.

[9] I think it’s pretty clear that I’ve chosen a side here by this point.


Written by Brian Dupont

April 22, 2011 at 1:02 am

6 Responses

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  1. Hmmm…you’re not seeing the reality here. Copyright (despite Joy’s assertions, and sorry, I would not call her an informed writer) is an attempt to incentivize innovation. And it goes far, far back into the common law. It gives artists the right to financially benefit from their work. It has nothing to do with regulating mass production. Painting, photography, music, sculpture, etc… All forms of art that exist is set form enjoy copyright. The idea is that if you don’t give artists that ability, what is to stop Disney/Richard Prince/anybody with a lot of money from simply taking all their money and stealing every decent idea and image in sight? Nothing (and really, once that barrier is crossed anybody in academia can appropriate whatever they want…). At least with copyright the original artist can recover licensing fees or at least sell the idea/artwork. They still may be out-competed, but they at least make some money from their creations.

    I don’t think you’re arguing for the death of copyright, but I don’t think you’ve quite thought the transformativeness alternative through. Every copyright case would hinge on whether the transformation was “artistic” enough…which would not only places judges in a larger role of judging art, but also would favor established artists over new artists. You are arguing for predation in the arts. Yes, collage is important, but Warhol, Rauschenberg, even Prince, have all negotiated with copyright holders to produce their work. To think that copyright is just now impinging on creativity is to mistake marketing for truth. And I’ll point out that without the dis-incentive, Warhol probably never would have painted so many soup cans…his art was significantly impacted and informed by copyright.

    Similarly, the Koons case you refer to was an anomaly (and has some major problems in its application of the law)–their are earlier Koons cases which specifically stressed that changing media is not enough to constitute transformation. And there are cases within the second circuit that properly apply the law. The statute is actually fairly clear and the Supreme Court cases (though not easy to understand…find me Supreme Court decisions that are) are actually fairly clear.

    Finally, you argue that copyright has had a chilling effect on Hip Hop. To be honest, I really don’t see this–Hip Hop seems to be more popular than ever and has a wealth of different artists who are cranking out albums. There’s also a huge amount of music that’s already in the public domain that they can tap into. I’d love to hear a Hip Hop artist layer Mozart, Beethoven, and Chopin (of course in updated musical form). There’s nothing stopping them from doing that except laziness. It’s not like the chord progressions from Aerosmith are so removed from Strauss that it couldn’t be done. Maybe the music isn’t as interesting to you, but are you sure that’s about licensing? The simplification of Hip Hop, to me, seems to be driven much more on the streamlining of production in the face of record companies losing huge profits to free downloads and not being interested in spending large budgets on complex productions. But, hey, I will admit I’m not expert on these details–I just think Hip Hop is a poor indicator of fair use issues.


    April 24, 2011 at 12:36 pm

    • You’ve actually brought up quite a bit of issues that I’ll be addressing in a follow up post regarding the rights of creators vs. fair use. However I disagree with your characterizations about Hip Hop as an indicator of how art would be affected by a more aggressive limitation of fair use.

      To be clear, I am not an expert on Hip Hop either, and while my music collection has a few albums, it is not what I regularly listen to. But I don’t think it takes an expert to recognize the immense complexity of the music that flowered in the early days of the genre that is simply impossible now. That Hip Hop is more popular now is a function of it growing, developing, and spreading for the past 30 years and becoming arguably one of the most influential musical genres. But an increase in popularity doesn’t mean that the enforcement of copyright hasn’t ultimately limited those artists. It seems unlikely to me that the genre would’ve moved towards a wholesale adoption of a minimalist sampling aesthetic of its own volition and then maintained that aesthetic through several talent cycles; when most other genres or art forms will see the younger generations push back and move against a dominate trend it seems to me that there is probably a reason outside of pure creative direction that has kept new Hip Hop artists from returning to the sonic territory opened up Public Enemy.

      As for the “laziness” you suggest regarding Hip Hop artists not using works in the public domain, I think there are two problems there:

      One, you’re basically circumscribing what those artists might work with in order to align their creative output with your feeling about copyright. However I think your suggestion that they work with Mozart and Beethoven is ludicrous. Artists are always influenced by their surroundings and what their contemporaries are doing; I would be surprised if any of the pioneers of Hip Hop would ever have seriously considered your suggestion to be at all realistic in terms of an artistic practice taking place in the South Bronx in the early 1980’s.

      Secondly (and correct me if I’m wrong here), but just because the original music to the classical artists you mention are in the public domain, that doesn’t mean that the recordings made of that music is. The New York Philharmonic retains a copyright on the recordings of their performances of that music just as Areosmith might. This would put the early pioneers of Hip Hop, and any artist using collage for that matter, back to square one, with no recourse but to not be so lazy and learn to play the instruments (or draw, or whatever) for themselves. Such rigorous enforcement of copyright leaves much less in the public domain than is often thought, and goes towards my point of the chilling effect. Enforcement of copyright as you see it would have outlawed almost all of Hip Hop at its birth; instead of what is an incredibly vital and creative body of music and culture we would have the hope that we would’ve gotten “something better” from artists who weren’t appropriating, collaging, or sampling. And looking at what came out of those early tracks I wouldn’t take that bet.

      Brian Dupont

      April 24, 2011 at 9:30 pm

      • OK, again, the disclaimer that I’m no Hip Hop music aficionado. BUT…

        1.) Given the proliferation of Hip Hop, I just don’t think it’s a strong argument. (re-orienting a bit within the music industry) To me it’s kind of like being outraged that one re-mix on a Lady Gaga album didn’t make it because of a copyright conflict. Meanwhile, however, she wouldn’t have had nearly as much incentive to make the original album if somebody else could just come along and appropriate all the tracks and put together an even more extravagant live show. Copyright isn’t nearly as restrictive as patents…you get to negotiate a license.

        I think you’re seeing the issue as small guys fighting the system. But understand what the system will do when they owe the small guy NOTHING.

        At any rate, I’m just fairly dubious that one of the most popular musical forms in the world would be even more musical and even more popular if only they could sample anything. At the end of the day, most of the musical forms have become somewhat stagnant (from metal to country). I think that has a lot more to do with streamlining production and trying to replicate franchises than copyright limitations. Look at American Idol–the music industry is populated by at least a few big promoters who tend to think that slight permutations are the way to market music…I just don’t think copyright is the limiting factor (or even a significant factor) involved in how Hip Hop is evolving…but that is an opinion.

        2. The laziness issue is simply a “necessity is the mother of invention” perspective. Certainly, you are correct that existing records out there usually have a copyright attached (I have no idea if any of the major philharmonics negotiate to the hilt…I doubt it, but who knows). That said, live performances/free concerts abound (and really, maybe this gives the community access to Aerosmith, but I think they guard their concerts fairly well)…but at least as long as recording equipment is allowed Hip Hop artists could record and sample any number of sources and not have the same sort of conflict. Its a major loophole in music copyright that doesn’t really have an corollary in the visual arts.

        Finally, copyright as I have sketched it was the same when Hip Hop was born–and yet, it was born. Prince got hammered, in large part, because he completely dismissed Cariou’s contribution to the pieces. He still asserts that without Cariou’s pieces in the work the work wouldn’t suffer (which is just insane). Sorry, I don’t buy it…as some other bloggers have pointed out, culture is collaborative…and I don’t see why a collage artist should be able to take 100% of the profits from their work while the artists who made the images they used get no credit and are supposed to happily turn over their work with zero profits.

        The view of copyright that you’re asserting means no authors can ever get paid for having their books/comic books/plays optioned for film (translating a book into a movie is highly “transformative”…from your perspective), publishers can compile and print anything they want (again, translating visual pieces into book form, “transformative”–they can even reassign authorship of images—a great new work from Rizzoli!), anybody can use you images on t-shirt, mugs, in fashion advertisements (and they may not even need to tweak those much since they will likely change scale, etc)…

        Sorry, I don’t think this will not produce more artists…you wanna talk about a chilling effect?


        April 25, 2011 at 1:13 am

  2. The issue of creators getting paid vs.the communal nature of culture and what that means for fair use is what I’m unpacking in the follow up post, so I’ll leave that aside for the time being. As you mentioned before, I’m not arguing for the death copyright (but I do think it requires a more nuanced understanding of the concept of the author).

    The central point of my using Hip Hop as an example is that here is one time were we have a large data set (30 years +) to examine the direction and production of an art form while dealing with a very strict enforcement of copyright. Again, I don’t think how popular Hip Hop may be in comparison to either it’s nascent stages or other forms of music is even relevant. My concern is with whether the application of copyright is limiting to what artists are able to make, and following that what the audience/ public is able to consume. Just because something is popular does not mean it is “good.”

    Brian Dupont

    April 25, 2011 at 7:16 am

    • Well, I’m looking forward to your next post. I understand that you’re not trying to eliminate copyright…I’m just pointing out that turning books into film, etc…would clearly fall under your expanded notion of transformativeness (unless you are arguing for a fair use exception solely for collage…that’s not the impression I got).

      As far as Hip Hop, I’d be very curious about an empirical study.

      That said, however, copyright hasn’t changed THAT much in the last twenty years–and I think collage has been alive and well all that time. Another reason that I think Prince got slapped hard is that he tries to advertise that he steals material and gets away with it (he was never going to mention Cariou’s name connected to the piece…and he even appropriated the images out of books Cariou had sent to him free of charge). Because so many copyright suits are settled privately, the public seems to have decided that the Prince suit was a sea change in the law. But it’s not. Warhol gave prints to the people who approached him, Prince purchased the rights from Gross for Spiritual America–a major reason for the nurse paintings was seemingly because the companies that produced the books (and the artists who produced the covers) long ago lost track of their product (that’s more like sampling Beethoven). But Prince also openly notes that he lies all the time. There was no reason for museums and other artists (or collectors) to believe the hype or rely on the message he was selling. The money behind his pieces was assumed to be an indicator that what he was doing was OK. And I’ll point out that up until recently Prince never tried to appropriate work from the art world aggressively…considering that de Kooning’s heirs and Prince hang out in the same circles in the Hamptons I’d be surprised if he didn’t negotiate something with them with respect to the recent de Kooning pieces.

      One last comment–I’m exceedingly troubled at the prospect that the law needs to distinguish between popular art and good art. Copyright is a federal issue and I don’t know how many federal judges you know, but their tastes are fairly…diverse. The fair use statute, at this point, doesn’t have artistic merit built into it–I’d rather it stayed that way. Time goes by and tastes shift…artists fall in and out of fashion…if you want a free market, I’d suggest that having judges evaluate artistic merit (which will become a battle of experts and will heavily favor established artists), I’d suggest the law needs to as far removed from evaluating artistic merit as possible.


      April 25, 2011 at 1:56 pm

      • It occurred to me that I remember the WNYC/ NPR show Studio360 did a story or show about this subject of how Hip Hop has evolved with the enforcement of copyright. The difference pre and post enforcement was very stark when sounded out side by side. I haven’t been able to find the right link going through their show archives, though.

        Brian Dupont

        April 26, 2011 at 4:50 am

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