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Will the Legal Status of Appropriation Art Be Decided This Year?

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Beauty, it is often said, is in the eye of the beholder, and so might be copyright infringement.

Artist Richard Prince never denied that he made use of some photographic images he found in a 2000 book by Patrick Cariou called Yes Rasta, documenting the community of Rastafarians the French photographer encountered in the mountains of Jamaica, for collage paintings that were exhibited in the fall of 2008 at New York's Gagosian Gallery and reproduced in a book published by Rizzoli.

The question is, was Prince's use of these images "transformative" -- borrowing in the process of creating something that is entirely new -- or just stealing?

Cariou brought a copyright infringement lawsuit against the appropriationist Prince, which resulted a decision in a U.S. district court last year against both the artist and the Gagosian gallery. (The Gagosian gallery, Judge Deborah A. Batts wrote in her decision last March, "had the right and ability to supervise Prince's work, or at the very least the right and ability (and perhaps even responsibility) to ensure that Prince obtained licenses to use the photos because they made Prince's paintings available for sale.") An appeal of Judge Batts' ruling will be heard early this year, and it is likely to help define what constitutes copyright infringement in these days of "sampling" and point-and-click downloading.

In his artwork, Prince scanned several of Cariou's images of people and landscapes into his computer and printed them directly onto his canvases, defacing them in limited ways (placing an electric guitar in one Rastafarian's hands and daubing paint onto the face, for instance), as well as adding other elements to the paintings. Prince "didn't transform these photographs, he just used them," said Cariou's lawyer Daniel Brooks, but it was Prince's contention that he took the photographer's images as raw material -- in the manner of an assemblage sculptor's "found objects" -- in order to create something that not only comments on the photographs' previous meaning but also gives them new meaning. Brooks noted that Prince could have avoided the problem altogether by traveling to Jamaica and taking his own photographs that he scanned onto his canvases, but the entire point of Prince's art is commentary on images that already exist in the world.

Judge Batt's proposed remedy was to impound all of Prince's unsold paintings that made use of Cariou's images and destroy them. Twenty-one unsold works from that Canal Zone series of paintings, as well as a number of catalogs and invitations to the gallery exhibition are currently stored in a Long Island warehouse, awaiting a final ruling on the appeal. Schiller stated that 13 paintings were sold from the Gagosian exhibition and are in the possession of the buyers, who are not part of the lawsuit. If Judge Batt's decision on the disposition of Prince's artwork is affirmed by the appeals court, Prince's lawyer Josh Schiller noted, these buyers might have a difficult time selling them, "and they might have to go to court to determine the legal status of the works they bought. I certainly hope that doesn't happen."

Other artists have stumbled into a gray area of the law, and it is quite likely that others will as well. "It's meant to be a gray area, because the copyright law is designed to be flexible," said John Koegel, a lawyer who successfully represented artist Jeff Koons in a similar infringement lawsuit by a commercial photographer, Andrea Blanch, in 2005. "The law states that the use of a copyrighted image is transformative based on the ordinary lay observer's sense of if the new work is different and how different it is. It is very much of a visual thing, and there is no bright line that artists can go by."

In fact, Koons has been sued twice by photographers for copyright infringement, the first time in 1989 in a case that he lost and the second time where he prevailed. In the 1989 case, a photographer, Art Rogers, had created a line of notecards with an image of a man and woman holding a litter of puppies, entitling the picture Puppies. Koons purchased one of these cards, tore off Rogers' name and copyright notice, and sent the card to Italian artisans (with whom he had worked in the past) with the instruction that they should copy the image as a sculpture, which was entitled String of Puppies. Koons claimed that artistic freedom would be abrogated if artists could not make parodies or create work that somehow showed the influence of other artists.

The court's reading of the copyright law, however, did not support Koons, finding that the artist had not parodied but simply copied the photographic image and "that Koons' copying of the photograph Puppies was done in bad faith, primarily for profit-making motives, and did not constitute a parody of the original work." In the second case, Andrea Blanch's photograph, entitled Silk Sandals by Gucci, shows the lower part of a woman's bar legs crossed at the ankles, resting on a man's knee. The woman is wearing Gucci sandals, one of which dangles from her toes. The photograph appeared in an August 2000 issue of Allure Magazine. Koons acknowledged that his painting Niagara copied the woman's legs, feet and sandals, omitting background element in Blanch's photograph, inverting the image so that the legs are vertical, feet down, rather than horizontal, and adding three other pairs of women's legs and feet. The judge in that case labeled Koons' use of Blanch's imagery "transformational," legitimizing Koons' actions under the fair use provision of the federal copyright law.

Working against artists, Koegel claimed, is the fact that "the law hasn't accepted two principals that are well understood in the art world. The first is that a change in medium is transformative. If you go from two to three dimensions, you are transforming something and it is experienced very differently than it had been. The second is that re-presentation is transformative; when you are taking something and making a comment on it, even when the thing you are commenting on is relatively unknown, that comment makes it protected as a fair use of a copyrighted image."

Like so much in the field of copyright law, those two principals are not absolute. Shifting from one medium to another is not a way of avoiding a lawsuit. For instance, turning a novel into a film makes a shift in medium, but without the permission of -- and, probably, a payment to -- the author, the filmmaker would be in violation of the writer's copyright, because the author has the exclusive right to make "derivative" works or license the making of a film. "Where derivativeness ends and transformative begins is not at all clear," said Robert J. Kasunic, principal legal adviser at the U.S. Copyright Office in Washington, D.C. Also, he noted, a sculptural version of a copyrighted two-dimensional work would not necessarily be considered transformational if there weren't some element of creativity added to the new work. Similarly, justifying appropriation of copyrighted material on the basis of making a commentary or parody only works "if the average person can see" that some comment is being made, he said.

The ordinary viewer may not be familiar with the customs and logic of the art world, taking what they see at face value rather than as irony. It is that collision of two worlds that makes copyright issues fraught with uncertainty. Jessica Litman, a professor at the University of Michigan Law School, claimed that part of the reason that Koons lost the first case but won the second was that "the first time he came into court with a lot of art world attitude about 'I'm the artist, I can do whatever I want,' and the second time he made a more reasonable statement about the kind of message that appropriation art sends. That goes a long way." The nature of the infringement was also different in the two instances, but the overall trend of court decisions between 1989 and 2005 (and the present) is to allow greater latitude for the claim of the new artwork being transformative. "There is more sympathy in the legal environment, maybe it has gone too far," Kasunic said.

There is no road map for artists whose subject matter includes existing images. To be safe, artists might request permission from the copyright holder of images they might use, although such a request might suggest that they knew they were infringing if a lawsuit is filed by a copyright holder who didn't agree to the use, although an artist then could counter that he or she sought to negotiate in good faith. What a headache. Koegel noted that there is no specific amount of changes to be made in a copyrighted image that allows it to be considered "transformed" into something else. Artists might want to consult a lawyer for an opinion on their artwork or "just to get a sense of the law." What constitutes copyright infringement, however, is determined on a case by case basis.