Richard Prince, famous for re-photographing Marlboro cigarette ads and selling them as high-concept artwork, recently lost a lawsuit about yet more flagrant appropriation. He took photos made by Patrick Cariou of Rastafarians, and manipulated them and painted over them and just generally had a grand time. In court records, Prince was incredulous, claiming fair use and citing the history of appropriation in contemporary art.
Defendants [Prince et al.] assert that Cariou’s Photos are mere compilations of facts concerning Rastafarians and the Jamaican landscape, arranged with minimum creativity in a manner typical of their genre, and that the Photos are therefore not protectable as a matter of law, despite Plaintiff’s extensive testimony about the creative choices he made in taking, processing, developing, and selecting them.
It’s tough to know how serious Prince was with all this. The man is a prankster. He’s said of himself, “I am a liar. And I cheat too. I make things up and I can’t be trusted. It’s not my fault.” Obviously taking the work of another artist, and taking multiple pieces from the same body of work, is a new level of appropriation (and plenty of people were pretty pissed off about that). But given the way the ruling is worded, it by extension implicates a whole tradition of appropriation-based work.
I note all this mainly for its amusement value. Prince is out a lot of money, but it seems that everyone involved benefits from the notoriety, including collectors who bought the paintings which can now “not be legally displayed.” If anything, we can take it as another signal of how screwed up our copyright/fair-use law is: that sampling/appropriation, so widely practiced in so many different practices, can be so curtailed by one aggrieved party.
Prince has hired an incredibly expensive legal firm to appeal the ruling (Boies, Schiller—they charge $250,000 just for the retainer…the total bill will be massive). He’s not laughing. He’s seriously interested in reversing the ruling.
As far as wondering how one aggrieved party can change so much, you’ve got the issue turned on its head. Other artists who appropriated (Warhol, Rauschenberg, etc…) all were sued…and all settled out of court. They didn’t advertise their losses because they didn’t want to. Similarly, Prince has never advertised his settlements much. The ruling hasn’t changed anything—the law stands firmly where its been for the last 20 years or so, with appropriation art having been around for longer than that. You’re confusing marketing with reality.