Is there anything worse than being sued? How about being sued and losing. No, even worse than that. What about never having the chance to sue someone? Exactly. Because the way it used to be, the worst that could happen was that someone took your work away from you, and then profited at your expense. Nowadays, if your career could use a real boost, you can't ask for a more golden opportunity than the chance to take someone to court. Case in point, the artist Richard Prince recently being sued by the commercial photographer Patrick Cariou. This has been well-covered in both the art and general press, dealing as it does with the hot topic of fair use, and yet the story deserves further examination if only to raise a larger issue, the very competence, or its lack thereof, on the part of the judges who preside over suits involving contemporary art. When artwork that is appropriative in nature is under review, we are compelled to question whether the judiciary may be biased towards artists they don't consider to actually be making art. In particular, artists who don't seem to create "original" images that reflect the way the world appears, but steal images and reduce them to the realms of the unreal. What if judges favor positive representations to the exclusion, or denial, of most others? We're a long way from Norman Rockwell and the Saturday Evening Post, but where some people's ideas of "real art" are concerned we haven't traveled all that far.
Let's face it, a photograph of a photograph—a Marlboro ad but without the cigarettes and the logo—is still an affront to most armchair critics. And everyone has an opinion, even a judge. More troubling is the possibility that among those who decide these cases, there may be some who are biased against the way that an artist such as Richard Prince operates, and for which he is celebrated and enriched. What if they're thinking as they preside on the bench: "Millions and millions of dollars? And someone else did all the work? Who do these artists think they are, royalty?" When fair use is on trial, how fair is the ruling if, rather than the law being applied to a case before the court, an admonishment is leveled for a perceived injustice on the part of offending images and their makers?
It seems that a number of Prince's collages and paintings for his 2008 Canal Zone series are based on images created by someone else. No big surprise for an artist who rose to prominence by taking photographs of photographs, and went on to become one of the most influential visual artists of his generation for doing so. The photos in question, which he collaged and transformed for Canal Zone, were taken by Patrick Cariou and reproduced in his book, Yes Rasta (2000). If you are among those who hadn't heard of Patrick Cariou until he sued Richard Prince, well, you certainly aren't alone. Maybe the name's not ringing many bells for readers right now. Maybe your subscriptions to Marie Claire, GQ, Condé Nast Traveler, Vogue Hommes, and Elle magazine—the Australian and French versions—have somehow lapsed. No matter. These are among the commercial publications where Cariou's photos have appeared over the years, magazines which cater mostly to people interested in fashion and travel, in other words, to well-dressed tourists. In addition to Yes Rasta, Cariou has a book that brings together his photos of surfers, which he titled with brilliant economy and an unassuming originality, Surfers (1997). Or maybe taking pictures—and are model release forms by any chance available for review?—of Rastas in Jamaica in the late 90s or surfers on beaches around the world doesn't seem all that au courant, not when other photographers have been there long before. Cariou's most recent book, Gypsies (2010), is at least a bit more timely, what with France's very own Sylvester Stallone, President Nicolas Sarkozy, having deported thousands of Roma in the desperate hope of reclaiming the votes of nearly three million unemployed French workers. He has, what, about the same odds as a Gypsy being elected? Or a better chance of landing a bit part in a new Woody Allen movie.
The blurb for Cariou's book describes him as "a self-taught anthropologist," and identifies him as an artist who "harbors a lifelong, passionate fascination with outlaws and renegades." Or so it says on Amazon, where copies of Gypsies are priced at $34 and change. You have to wonder: do Rastas see themselves as renegades and outlaws? Do surfers in Tahiti? How about gypsies? And artists for that matter? What about photographers who work for Conde Nast Traveler? Does Patrick Cariou consider himself to be a renegade or an outlaw? Maybe he identifies with his image of his subjects. Or is he, like a lot of people, happy to have the law on his side when it suits him? What's the word for hypocrite in French? Oh, right, it's the same word. Nothing lost in translation there. So Cariou photographs surfers and Rastas and Roma gypsies. That makes him a romantic, a little behind the times where Endless Summer and the hills of Jamaica are concerned, but in that tradition, more or less. Richard Prince is a romantic as well, of a much different sort of course, not squaring with commonly received notions of same. Prince once memorably remarked, "Oceans without surfers, cowboys without Marlboros … Even though I’m aware of the classicism of the images. I seem to go after images that I don’t quite believe. And I try to re-present them even more unbelievably."1 But then Prince has spent much of his career confounding all sorts of long-held beliefs, the very system of faith in an image as it applies to the photographic. It's why his contribution is important and of value to the culture. Cariou happily makes pictures that a lot of other people have made before. Is this "anthropology" without apology? Most likely the only new ground that Cariou has broken of late was walking into a Manhattan courtroom.
Patrick Cariou, from Yes Rasta
Leni Riefenstahl, from Nuba
Whatever you think of a French photographer—even one based in New York—taking the pictures that he does, you might say, "At least Cariou got off his ass and went somewhere, with an actual camera, and took his own photos. Made an effort. Showed that he wasn't afraid of a hard day's work, and would venture pretty far outside the comfort zone that most fine artists prefer to stay inside. Not like Prince, who just appropriates images." Cariou's project might remind you of another heroic effort from another time—that of Leni Riefenstahl, who went all the way to Africa to document the Nuba tribes in Sudan. She was already in her 60s when she first visited the continent, making numerous trips and continuing to work there into her 70s, at times living alongside the Nuba. And the pictures are amazing. That certainly didn't stop Susan Sontag from criticizing the photos for their "Fascist esthetic," but then there's no appeasement for injustice collectors, and ingratiation is usually its own reward—not to mention that Riefenstahl's accomplishment doesn't even come close to that of Annie Liebovitz. As we consider photographs of the Nuba in the Sudan or Rastas in Jamaica, we acknowledge the not uncomplicated history of artists documenting indigenous cultures, bringing their work back to "the first world," publishing pictures in coffee table books, framing them, hanging them on gallery walls, and offering them for sale. Cariou's photographs certainly have artistic merit. For all his presence on glossy magazine pages, and relative absence in galleries exhibiting contemporary art, he is still an artist. But what of the social and anthropological import of his work? If he had simply thought that Rastas were "cool" he could much more easily have photographed them on the streets of Paris and New York. Like another itinerant French artist, Paul Gaugin before him, Cariou rejected the conventions and propriety of Europe and went to the source, beyond the long arm of civilization and the law. Maybe he was on a romantic quest, in search of something truly authentic in such a plastic world. From this point of view, and perhaps from the bench, when he is up against an artist like Prince he is viewed as an underdog. And most of us want to take the side of the underdog. Cariou vs. Prince will inevitably bring to mind one of Jimmy Cliff's greatest lines, "The harder they come, the harder they fall."
U.S. District Court Judge Deborah A. Batts
And what about the judge in Patrick Cariou's case against Richard Prince? This would be Deborah A. Batts of the U.S. District Court. There's a photograph of Judge Batts online, taken in 2002, posing proudly next to her painted portrait, set on an easel, and commissioned by her alma mater, the Harvard Law School. We don't know who the artist is, but he or she seems to have rendered a fairly good likeness, and the picture is in what most people would say is a handsome frame. In the way that Judge Batts is positioned on the chair, the artist has made it appear that although she's somehow holding still, there is at the same time a slight swivel upwards. It doesn't look like a totally natural position. Luckily her flowing dark robes cover up whatever flaws might have been even more noticeable in the painted pose. But the artist clearly had difficulty setting her properly on the chair, or maybe the judge was tired from posing for a long while. Unless the painting was made from a photograph. Then you notice the hands in the painting, the way they're held. This isn't a comment on the physiognomy of the subject, more the awkwardness with which the artist has placed them. The judge is holding a pen in her left hand, and it looks a bit crimped. In her right hand she's holding a piece of paper, except her fingers don't actually grasp the paper. It's just there. You can do things like that with paint, make an object float all on its own. Most artists have a difficult time painting and drawing hands. It's not uncommon. Anyway, Judge Batts is smiling in the painting just as she's smiling in this photo. There's a man standing on the other side of the painting, Law School Dean Robert C. Clark, a bit flat in his posture. There's an old painting on the wall directly behind him, in a gilt frame, of a man wearing an elaborate powdered wig. This might be one of the founders of the school. If you think about it, there are hundreds of years in this photo of Judge Batts and Dean Clark, even though it was taken in a split second. The world of contemporary art may not be the domain of Judge Batts, nor of any judge who hears a case where contemporary art and copyright infringement come head-to-head, but she is obviously happy about this particular painting, and she should be very proud in the moment. We have to get past the painter's talents, such as they are, because what this picture really represents is so much more important in every way.
Richard Prince, from Canal Zone
When Judge Batts looked at Richard Prince's pictures, what did she see? We can only imagine what might have crossed her mind. Was she shown, for example, images in which Rastas appear to have been defaced, or were collaged into pictures with naked young women? What Prince has done in his collages might well be perceived as demeaning in terms of people of color and women—even if you're neither. Admittedly, there is much in Prince's alterations to the original images that can be perceived as juvenile, a bit teenage perhaps, something you might find amid the restless apathy of a junior high school class. It was probably Andy Warhol who once said something about how boredom becomes fascination if you stay with it long enough, and, for better or worse, this may apply to Richard Prince. Meanwhile, the pair of Rastas in the background of the picture reproduced here are staring none too discreetly at the bare asses of two surfer girls. This is just one example of how Prince has repeated figures from one image, scaled them down, repeated figures from yet another, recombined them within an altered figure/ground relationship, defaced them, and then, as the French will say, voila!, a new picture was born, one that had never existed before. Artists like Richard Prince are very clever in this way. It's called collage, and many artists have been doing it for hundreds of years now. Cutting pictures out of books and newspapers and magazines, pasting them down in different, sometimes absurd and offensive configurations. Even if it's meant to be precocious, there's quite a bit of it—the masterworks, of course—right here at New York's Museum of Modern Art. Filmmakers avail themselves of collage, as do many musicians. You see and hear it a lot these days. It's pervasive. It's everywhere. The real problem with art and the law today, as this case proves, is not only that judges interpret a law that is out of date, but that they may not be fully fluent in terms of interpreting the art of the matter. Just think of how dangerous it is to repair a plane with old parts, and then have the work supervised by someone who doesn't actually understand how the aircraft flies. Add in the fact that Richard Prince is a kind of "barnstormer" in the art world. While successful artists usually prefer to play it safe, Prince, with the passage of time, has taken greater as opposed to fewer chances. At the risk of making him sound as if he's something of an aviation hero—after all, he's human, too—neither is he the villain some would make him out to be.
This case is certainly not about money, even if in this culture everything revolves around the almighty dollar. Who among us can't see that Patrick Cariou has profited from the Richard Prince case, not least for the attention he wouldn't have otherwise received, more in the past year than in the last ten. Where was his career before all of this? That's a good question. The man doesn't even have a Wikipedia page. Even Mr. Ed has a Wikipedia page. You know, Mr. Ed, "the talking horse." If something stinks in the stable, it's Patrick Cariou claiming that Richard Prince's pictures deprived him of a living, of financial gain, of attention and sales. You have to wonder how many copies of Yes Rasta were sold before this case came to trial, and how many more have subsequently been sold? How many of his photos have collectors and dealers recently acquired? Patrick Cariou should be thanking Richard Prince, not taking him to court. And a final thought, what about the people in these Rasta photos, and what about the Gypsies, do they in any way profit from the sale of Cariou's work?
At this point you must be asking yourself, "Hey, wait a minute. Who's on trial here?" The answer to that is simple enough. You, me, and everyone we know. Richard Prince, Patrick Cariou, the judge and the law. Especially the law if it's ill-equipped for these times, or if it's applied in a narrow-minded way. Why Richard Prince didn't defend himself more vigorously in court is a mystery to many of us. Because the case wasn't only against him and his funny pictures, by which some people cannot be much amused. It was against us all. This kind of art has its history, and its future will not be denied. It will have its day in court. And the culture will evolve even if the art appears to have devolved. You may not like this approach to picture-making, or the way old songs are cut up, reassembled and performed, but you cannot say that the original has not been transformed. There is also a double bind to consider: most educated people don't want to appear ignorant about art, and yet they don't want to be seen having the proverbial wool pulled over their eyes. The fact that today's art is probably misunderstood and disliked in most courts of law is actually a hopeful sign. It means that we are moving forward, slowly but surely. In art and music as in nature, every river has its source, and there are many rivers to cross.
1. Marvin Heiferman, "Richard Prince," BOMB Magazine, Summer, 1988.