The three-year legal battle between Richard Prince and Patrick Cariou isn't over yet. Cariou's lawyers voiced their opposition to Prince's appeal of the historic 2011 copyright decision in a brief filed yesterday in the United States Court of Appeals for the Second Circuit. The takeaway? It's not easy to mix copyright law and art history.
The dispute centers on Prince's "Canal Zone" series, which a Manhattan district court ruled did not sufficiently transform Cariou's photos of Jamaican Rastafarians to qualify as fair use. In Prince's appeal, his lawyers argued that the artist's standoffish original testimony was "consonant with the core post-modern belief that an artist’s intent is irrelevant because an artwork’s meaning is manifold." (Prince originally testified that he had “never been interested" in Cariou's photographs, and used them as raw material.)
Now, it's Cariou's lawyers' turn to cry foul. "Fittingly perhaps, in a case involving appropriation art, appellants’ brief is 'post-modern,' questioning basic concepts such as: what is a fact, and what is properly before an appellate court on an appeal?" they write. The defendants are trying to make a "revisionist" argument, they argue, by adding views of critics, museum curators, and collectors like Lisa Phillips, Nancy Spector, Douglas Eklund, and Adam Lindemann, which were not presented in the original case. (Lindemann, it should be noted, bought a painting from the "Canal Zone" series.) A sample statement that Cariou's lawyers want the court to ignore involves Spector asserting that Price needs original works in order to "critique, dismantle, [and] transform those works."
The brief is also filled with gossipy tidbits about the manner in which Prince's dealer, Gagosian, promoted the show. (Because the gallery reprinted and sold the copyrighted material, it was held liable as well). Larry Gagosian testified that guests at the gallery dinner held for the opening included Gisele Bundchen, Elle Macpherson, and Kate Moss because they "look good at a dinner table." (We can't quite figure out what legal insight this offers, but maybe Cariou's lawyers just wanted to make Larry Gagosian look like kind of a jerk.) According to court papers, the gallery sold eight paintings for a cash total of $10.48 million, 60 percent of which went to Prince.
Perhaps the most interesting question highlighted in the filing is this: should the art establishment's critical reading of an artist's work sway a judge's ruling? According to Dan Brooks, a partner at Schnader Harrison Segal & Lewis and counsel for Cariou, the answer is no. "Fair use is an affirmative defense, so it's something that the defendant has to prove. It's true that some of the cases evaluate whether the comment or satire is objectively perceivable," Brooks told BLOUIN ARTINFO. "But courts only do that after the defendant first says he subjectively intended to create a parody or satire."
So, does it matter if outside observers perceive a work as parody or commentary if the artist never frames it as such? The Andy Warhol Foundation challenges Brooks's assertion in an amicus brief filed in support of Prince, claiming that "transformative meaning must be assessed first and foremost by observation of the work itself." This argument is likely to be fleshed out by Prince's own lawyers in their response. The legal battle is in no way over: after Prince's lawyers file their brief, Cariou's lawyers will have the opportunity to reply.
Douglas Eklund's contention that Prince was "being intentionally inarticulate" in his deposition is another statement that Cariou's lawyers are trying to throw out of the appeal. Brooks, for his part, noted that Prince seemed "very articulate" in earlier interviews about the "Canal Zone" series, and wrote a catalogue essay for Gagosian's exhibition of Bob Dylan's paintings. "It's very well written," according to Brooks. "He's perfectly capable of expressing himself in words as well as in paint. Who else would know better than Richard Prince?" In the coming months, perhaps we'll find out.