In the closely watched copyright brawl between appropriation artist Richard Prince and photographer Patrick Cariou now playing out in the federal appellate court in Manhattan, trade associations representing photo-licensing giants Corbis and Getty Images and 7000 photographers have submitted a "friend of the court" brief in support of Cariou.
Read my latest story on the Cariou v. Prince case in The Art Newspaper, here.
Showing posts with label Copyright. Show all posts
Showing posts with label Copyright. Show all posts
Friday, February 3, 2012
Monday, January 2, 2012
Taking Stock at Year-End: The Google Search
 |
| Richard Prince (left) and Larry Gagosian |
As some of you have no doubt noticed, thanks to you my articles published here and elsewhere frequently appear in the top five of Google search results, even months after they are published.
Today I performed some searches on Google (using Firefox) for rankings of news that I broke and exhibitions that I reviewed.
 |
| Cezanne loan nixed |
Search: Russian art loan embargo
Number of Search Results: 1,190,000
Rankings:
1. My New York Observer article on Chabad v. Russian Federation, the court case that triggered Russia’s embargo on loaning art to U.S. museums
2. Jerusalem Post
3. New York Times
4. New York Times
5. Los Angeles Times
Search: Richard Prince copyright lawsuit
Number of Search Results: 153,000
Rankings:
1. New York Times
2. My New York Observer article breaking the news of Prince’s strategy on appeal and what happened to his unsold, copyright-infringing paintings
3. New York Observer
4. New York Times
5. New York Times
 |
| Soutine portrait |
Number of Search Results: 141,000
Rankings:
1. My review of the Soutine/Bacon show held in New York
2. New York Times
3. Huffington Post
Search: Metropolitan Museum cancels loans
Number of Search Results: 106,000
Rankings:
1. My Observer article breaking the news that the Met had canceled loans to Russia in response to Russia’s art embargo
2. New York Times (kindly and appropriately crediting my article with breaking the news)
Search: Picasso Marie Therese lamour fou
Number of Search Results: 17,300
Rankings:
1. My review of the "Picasso and Marie-Therese: L’amour fou" show at the Gagosian Gallery
2. Gagosian
3. Artnet
4. nymuseums
5. New York Magazine
 |
| On loan from Koons |
Search: Jeff Koons Old Masters Metropolitan Museum
Number of Search Results: 39,400
Rankings:
1. New York Observer (kindly and appropriately referring to my article, which broke the story)
2. My story uncovering Koons’ secret loans of his Old Masters to the Met
3. Telegraph
Search: Poussin fails to sell
Number of Search Results: 3,560,000
Rankings:
1. My piece on Poussin’s “Ordination” flopping at Christie’s
2. BBC
3. Wall Street Journal
Search: Cervera Hebrew Bible Metropolitan Museum
Number of Search Results: 104,000
Rankings:
1. My piece on the opening of the Cervera Hebrew Bible display at the Met
2. My piece on pages of the Bible showing unicorns in the context of French and Islamic art
Search: Richard Prince Larry Gagosian copyright infringement
 |
| $2.43 million paid |
Number of Results: 7,670
Rankings:
1. The Art Newspaper
2. My story (different from my Observer article mentioned above) exclusively revealing some of the buyers of Prince’s infringing paintings and how much they paid
Search: Rauschenberg Short Circuit
Number of Search Results: 8,660
Rankings:
1. New York Times
2. My piece analyzing Robert Rauschenberg’s “Short Circuit”
Search: Passion in Venice Man of Sorrows
Number of Search Results: 292,000
Rankings:
1. Museum of Biblical Art
2. Amazon
3. Wall Street Journal
4. New York Times
5. My review of the “Passion in Venice” show that examined the Man of Sorrows at New York’s Museum of Biblical Art
Images: Top from Artinfo, Cezanne and Soutine pulled from the internet, bottom image from court documents.
Image of Koons loan and text Copyright 2011-2012 Laura Gilbert
Tuesday, November 1, 2011
Larry Gagosian Speaks – About Maguire and DiCaprio and What It Takes to Visit Richard Prince’s Studio
It’s notoriously difficult to score an interview with close-mouthed mega-art dealer Larry Gagosian -- so difficult that when the Wall Street Journal published an article about him last April, the fact that he had actually spoken with the reporter was almost bigger news than what he said.
 |
| Larry Gagosian |
Gagosian’s deposition, taken in October 2009, and documents that are part of the evidence have a couple of eyebrow-raising tales. He testified, for example, that Tobey Maguire and Maguire’s best buddy Leonardo DiCaprio were interested in Prince’s “Canal Zone” paintings – the series that would later be found infringing – and “my recollection is they were going to buy one jointly.”
“Is that unusual?” Cariou’s lawyer asked him.
“Extremely,” Gagosian replied.
The joint purchase was never consummated.
Gagosian also revealed that he only rarely has a written contract with his artists -- he doesn’t have one with Prince -- and that employees who close a sale get a commission that’s taken out of the gallery’s percentage of the buyer’s payment.
"Studio Visits Are a Major Seduction"
The real meat, though, is the inside look at the callous, sometimes contemptuous attitude of Gagosian and his staff toward the rich, famous, and beautiful who have made him so successful.
Several weeks before “Canal Zone” was due to open, one of his salesmen told Gagosian that he was meeting with a client who had already bought two paintings by Prince. (The “Canal Zone” works sold for as much as $2.43 million.)
“I'm trying to sell him more Prince . . .,” the email said. “Is there any way to visit Richard's studio in Rensselaerville the week of November 10? Studio visits are a major seduction for this guy.”
“Only if he buys another painting,” was Gagosian’s response.
There was a flurry of emails about the guest list for a dinner the night “Canal Zone” opened, including this emphatic instruction from one gallery staffer to 16 others: “Larry would like the opening and dinner to be ‘kick ass’ so please invite celebrities/moma/gugg/whitney curators and other clients who will BUY his work.”
Models "Look Good at a Dinner Table"
Gagosian himself had the final say over who was invited, and his personal assistant at a couple of points requested further information. “Before Larry approves this list he would like to know if you have sold any art to these people. If so, he would like to see proof,” reads one email.
The assistant later asked who a couple of invitees were, and received this reassuring answer: “Their parents are the wealthiest people in Holland, worth 5 billion.” “ok,” she emailed back.
Cariou’s attorney asked Gagosian why there were so many fashion models – the guest list included the likes of Elle Macpherson, Kate Moss, Christy Turlingon, and Lauren Hutton.
“They look good at a dinner table,” said Gagosian.
Q. And do you also want to include celebrities to generate some buzz for the show?
A. Yeah –
Memory Lapse
Memory lapses are not uncommon at a deposition, but they are sometimes -- although one can't say that's necessarily the case here -- a cover for avoiding an answer that could harm one’s case or reputation.
Memory lapses are not uncommon at a deposition, but they are sometimes -- although one can't say that's necessarily the case here -- a cover for avoiding an answer that could harm one’s case or reputation.
Gagosian couldn’t remember if he had given Prince – who at the had been showing with Gagosian for only a few years -- any payment to join his gallery. “I think not,” he testified. “But my memory’s not perfect.” Of course, Gagosian does pay Prince 60% of the sale price of his work, whereas the usual rate, at least at other galleries, is 40-50%.
Gagosian could not remember, either, whether he had ever been a party to a lawsuit, even though, among other cases he's been involved in, a few years previous he’d settled a highly publicized suit in which the IRS alleged that he and a couple of associates had set up a shell company to avoid taxes. The IRS sought $26 million in unpaid taxes and penalties. Gagosian and co-defendant Peter Brant – art collector and Gagosian client -- made the case go away by paying a reported $9.1 million.
“Have you ever been a party to a lawsuit before?” Cariou’s attorney asked.
A. I don't know.
Q. Okay. Have you ever been a plaintiff in a lawsuit?
A. I don't think so.
Q. Have you ever been a defendant in a lawsuit?
A. Not that I recall.
With some prodding, Gagosian remembered something, saying, “You know, I don't know if they were lawsuits actually. One was -- I'm just trying to remember if they were lawsuits or why I was -- I don't recall accurately.”
Maybe if you sell $1 billion of art a year – an estimate the Wall Street Journal quoted in April – you can afford to be oblivious to legal claims against you. Gagosian said, at any rate, that he’d seen neither the complaint nor the answer in Cariou v. Prince.
Image pulled from the internet.
Text Copyright 2011 Laura Gilbert
Image pulled from the internet.
Text Copyright 2011 Laura Gilbert
Monday, October 31, 2011
Richard Prince Testifies He Lied to the Press & He Bought the Rights to Use a Notorious Photograph of Brooke Shields
 |
| Richard Prince |
A couple of chinks in Richard Prince’s versions of truth are emerging from documents filed with the Second Circuit Court of Appeals on October 26, in addition to his having been found liable last March for infringing photographer Patrick Cariou’s copyright.
If Prince’s sworn statements can be believed, he sometimes lied to the press, and the outlaw persona he’s peddling as an artist who just takes whatever image he wants can’t always be trusted.
In his October 2009 deposition in the case of Cariou v. Prince, which is currently on appeal, Prince was asked about various statements he had made to the press. Some of those statements, he testified, weren’t true, although he preferred to describe his lying as being “creative.”
"I Made That Up"
Here’s an example. The questioner is Cariou’s attorney, Dan Brooks. Hayes is Prince’s attorney, Steven Hayes. Bart is Hollis Gonerka Bart, the attorney for co-infringers Larry Gagosian and the Gagosian Gallery.
Q. Do you have your own airplane?
A. No.
Q. You’re taking flying lessons though, right?
A. No, I made that up.
Q. Okay. All right, you said –
A. I make – I say a lot of things –
Q. That aren’t true?
A. That aren’t – well, no. It’s more about – it depends upon the interviewer. I try to be creative, let’s put it that way.
Q. Okay. So when you said you were taking flying lessons in your own airplane, that was not true?
A. I was being creative.
Q. Which means it wasn’t true?
Mr. Hayes: Objection to the form of the question. It’s been asked and answered.
A. I would leave that up to the audience. I mean I don’t want to tell – I don’t want to say whether or not – I might – I might be flying, taking flying lessons. I don’t see the relevance of that.
Q. That’s fine. But you understand you’re under oath right now?
A. Oh.
Q. Do you understand that?
A. Yes.
. . .
Ms. Bart: He certainly was sworn in at the beginning to tell the truth –
Mr. Brooks: I understand.
Ms. Bart: -- and he agreed to do that.
Mr. Brooks: Hopefully that’s what we’ll get.
Prince was also asked about the accuracy of a December 2007 report by Randy Kennedy in the New York Times that “Mr. Prince has spoken of receiving threats, some legal and some more physical, from his unsuspecting lenders.”
Q. Now, is it true that you starting receiving legal threats at some point?
A. No, that’s probably something that I just made up.
Paying the Price
Prince has cultivated a reputation as an outlaw who takes whatever image he wants without asking anyone’s permission or paying any fees to the copyright owner. It turns out that reputation is not wholly accurate, at least according to his deposition testimony.
 |
| Prince's "Spiritual America" |
One of his most notorious works – it was pulled from a 2009 exhibition at the Tate because it could possibly violate obscenity laws -- is his photograph of Garry Gross’s photo of a 10-year-old naked Brooke Shields in a steamy bathtub, made up like a woman in her sexual prime. It has been reported that he paid Gross a $2000 out-of-court settlement.
Prince, though, testified that he bought the rights to the image. Is what he termed a “concession” in fact the price he was willing to pay to show the work at the Whitney Museum here in New York?
Here’s the testimony:
Q. Did Garry Gross ever threaten to sue you?
A. No, he never did.
Q. Did you ever reach an out-of-court settlement with Garry Gross?
A. No.
Q. You’re positive?
A. I’m positive.
As far as I can tell, I’m positive. I actually – in 1992 I guess that’s what they’re talking about, your last quote here (from the Times article) – I mean Mr. Kennedy is talking about a 1992 discussion at the Whitney, and I believe at that time I bought the rights to the image for $2000.
Q. From Gary Gross?
A. Yes.
Q. Because he threatened to sue you?
A. No. I was told by the Whitney that I – in order to exhibit that image I made a concession, or they advised me that it would probably be best that – and I believe I sort of reached out to him at the time.
Because up until then, that image that I rephotographed from that pamphlet that he had produced in 1983, I made one copy, an 8 x 10, and I gave it away. And it wasn’t until 1992 that it came back into the limelight, and I think my attitude changed a bit and I was sort of willing to become more part of the process I suppose.
Prince produced the photograph in an edition of 10 with two artist proofs. One of the ten was sold at auction in 2003 for $372,500.
Images pulled from the internet.
Text Copyright Laura Gilbert 2011
Friday, October 28, 2011
In Richard Prince Copyright Case, Who Bought the Infringing Paintings and How Much Did They Pay? EXCLUSIVE
 |
| Richard Prince, "Specially Round Midnight," purchased by Steven A. Cohen for $2.43 million |
The U.S. District Court – whose decision is being appealed, of course – has enjoined the buyers from displaying the works in public, and that order stands.
Copyright experts and even Prince’s own attorney think that injunction makes it all but impossible for these collectors to sell the paintings. Their current value is thus pretty close to zero.
According to documents filed in the Second Circuit Court of Appeals on October 26, leading the list of purchasers of what the court termed “unlawful” paintings is none other than Steven A. Cohen, one of the biggest collectors of contemporary art and head of controversial hedge fund SAC Capital Advisors.
 |
| Steven A. Cohen |
For Prince’s work, Cohen apparently paid the most of any buyer, purchasing “Specially Round Midnight” for $2.43 million. Easy come, easy go?
Other buyers include Michael and Lise Evans, who bought “Mr. Jones” for $2 million, art dealer Jeanne Greenberg Rohatyn, collector Adam Lindemann, and shipping magnate Philip Niarchos.
What follows is a list of works declared unlawful and sold through February 2009 and the prices paid:
“Specially Round Midnight,” $2.43 million
“Mr. Jones,” $2 million
“Escape Goat,” $2 million
“Canal Zone,” $1.2 million
“The Other Side of the Island,” $1.2 million
“Naked Confessions,” $450,000
“Untitled (Rasta)," $400,000
One buyer, whom I have not yet been able to identify, wanted to buy three paintings – “Back to the Garden,” “Cookie Crumbles,” and an untitled work. But he had cash flow problems, so he traded a Richard Serra sculpture for them. Gagosian Gallery, which is Prince’s dealer, got the sculpture, the buyer got the paintings, and Prince got money.
In addition, Prince traded four of his “Canal Zone” paintings for a work owned by Gagosian, “Dying and Dead Veteran” by Larry Rivers, estimated to be worth between $3 million and $4 million.
Stay tuned, as I’ll be breaking a lot more news over the next week.
 |
| Two images from Patrick Cariou's "Yes, Rasta" that Prince used in creating "Specially Round Midnight" (top) |
Text Copyright 2011 Laura Gilbert
Sunday, July 24, 2011
Cariou v. Prince Update: Collectors Screwed, Appeal Stalled in Copyright Case That Has Art World on Edge
How do you inform a collector that a work he bought from you for, oh, a million dollars or so is an illicit work, illegally created and now unsaleable? Well, if you’re the gallery that sold it, you yell for your lawyers.
That’s what Larry Gagosian and his gallery did when they sent letters to the buyers of appropriation artist Richard Prince’s “Canal Zone” paintings, which, the U.S. District Court in Manhattan ruled in March, infringed -- some might say “stole” -- Patrick Cariou’s copyrighted photographs and are therefore not so different from contraband.
The letters (left) were sent to comply with the Court’s order in that case, but they didn’t exactly tell the collectors they had all but thrown their money away (unless the ruling is overturned on appeal, which could take years).
The letters stated that “in the opinion of the Court” – as though the federal courts are art critics instead of constitutionally delegated authority on the law of the land – the paintings were “not lawfully made under the Copyright Act of 1976” and they “cannot lawfully be displayed . . .in the public.”
Translation: the paintings are like pirates’ booty, have to be hidden from public view, and, even according to Prince’s own lawyer, most probably can’t be resold. According to the defendants’ documents, at a minimum 14 works were sold, and four sold for prices ranging from $400,000 to $2.43 million.
As for Prince himself, the Court’s smackdown doesn’t seem to have changed much, though it could cost him a big hunk of money. As far as his lawyer Josh Schiller of Boies Schiller knows, the decision hasn’t changed his practice of using other people’s images, nor has it caused “any of his works to be pulled” from any shows, the attorney told this reporter.
Indeed, Prince had two well-received exhibitions in Paris this spring and another in Hongkong. In August, he’ll be showing in the Hamptons.
Paintings Can’t Be Sold
For the “Canal Zone” buyers, though, it’s a different story. Their paintings can’t be sold, except conceivably on the black market. Schiller said “any kind of sale would include showing (the work) publicly” and that’s been forbidden by the Court.
Schiller didn’t say the “Canal Zone” paintings were now worthless – he described their worth as “undetermined” – but he did say that the decision had placed an “implied limit on their value.” He termed the decision’s effect on the collectors “an injustice.”
 |
| Larry Gagosian |
A lawyer close to the Gagosian organization said that if the collectors were his clients, he would advise them not to put the paintings up for sale.
Copyright law expert David Wolf, who is not involved in the case and is former litigation counsel at Time Inc., said that any third party who knew about the Court decision and tried to sell the work – not just the owners but an auction house, for example -- “would run a pretty severe risk.”
Have any collectors asked for their money back? Schiller said he didn’t know.
So are Prince’s dealer and co-defendants Larry Gagosians and his Gagosian gallery offering buyers refunds? When asked, the gallery refused to comment.
Price Revelations
That’s not all the collectors have to worry about, as revealed to this reporter by the parties’ lawyers this week and gleaned from Cariou’s recent motion to dismiss a joint appeal to a higher court by Prince, Gagosian, and the gallery.
The people who shelled out the big bucks -- as recited in the Court’s decision, eight of the works sold for a total of $10.48 million, and seven were exchanged for art with an estimated value between $6 million and $8 million -- now also could be exposed to the disclosure of how much each paid and, perhaps, their names.
 |
| Gagosian Gallery, W. 24th St. |
Private market sales are usually kept secret – the industry-wide practice is an old carny shell game of keeping everyone in the dark about an artist’s true prices -- and Gagosian has a strict policy of don’t tell.
But, in what could be some of the most remarkable revelations of art-market dealings in recent history, that could change when a public jury trial is held to determine the damages that photographer Cariou suffered.
Cariou’s lawyer Dan Brooks has been provided with the appropriate receipts for each painting sold, and the parties have stipulated that the prices “shall be admissible in evidence.” For now, the information is subject to a confidentiality agreement, but Brooks said they would be “fully aired” at the damages trial and “there won’t be any dispute” about the prices the works brought. At trial, the buyers’ names could also be revealed, said Brooks.
If we get to that trial.
Prince and the Gagosian defendants filed a notice of appeal before the damages trial could get started, and the District Court adjourned the trial pending the outcome of the appeal. So Cariou has moved to dismiss the appeal, arguing that it is improper until damages have been resolved – that’s a motion that will be decided who knows when, though it could be as early as August.
Prince’s Lawyer: Court Should Disregard My Client’s Testimony
Meantime, of course, settlement is always a possibility, though it was also a possibility that was ignored before the District Court dropped a ton of bricks on Prince’s and Gagosian’s heads.
If the appeal is permitted before the damages trial, Schiller plans to argue among other things that the District Court in effect should have rejected or at least discounted his own client’s testimony – since Prince proved to be his own worst enemy. The Court “would have benefited,” said Schiller, from considering “more objective factors,” which Schiller didn’t specify, and evidence of “how the public perceives his work.”
 |
| Prince |
Prince, in his losing effort, had argued that his use of Cariou's photographs came within the "fair use" exemption of the copyright law, which allows limited borrowing of other people’s copyrighted work for news reporting, satire, and criticism, for instance.
But the District Court held that for "fair use" to apply, the new work must be "transformative" of the original. Prince's work was not transformative, the Court found, because it did not "in some way comment on, relate to the historical context of, or critically refer back" to Cariou's work.
Under this test, Prince helped sink his own case. He testified at deposition that he had no interest at all in what Cariou's photographs meant.
But the District Court held that for "fair use" to apply, the new work must be "transformative" of the original. Prince's work was not transformative, the Court found, because it did not "in some way comment on, relate to the historical context of, or critically refer back" to Cariou's work.
Under this test, Prince helped sink his own case. He testified at deposition that he had no interest at all in what Cariou's photographs meant.
Focusing on Prince’s testimony is too “narrow” a view of the law, said Schiller, and it means “an artist has to lawyer up to get his perception across.”
(Well, one might rejoin, only if an artist is sued, and then he has to lawyer up anyway.)
It could be tough to overcome Prince’s testimony. “Whatever arguments they make, the Court will look at Prince’s testimony,” said copyright expert Wolf. “Anytime the party gives detailed testimony about what he’s doing it’s important.”
What Happened to the Unsold Paintings
The District Court had given Carriou the power to determine the fate of the unsold “Canal Zone” paintings. We now know what he decided.
It turns out that within days of the Court’s decision, defendants’ lawyers, “expressing concern that the infringing paintings might be destroyed” -- an option the Court explicitly permitted – asked Cariou to agree to store the works until the case is somehow resolved, according to papers filed by Cariou’s lawyer Brooks.
Cariou acquiesced, so there’ll be no conflagration, at least for awhile. The unsold paintings are now warehoused somewhere in Long Island City.
Schiller said he thought Prince was a “target” because he was “rich.” But rich also means he may well be able to afford endless, costly litigation – Boies Schiller reportedly racked up $7 million in fees defending the Andy Warhol Foundation in an authenticity lawsuit, with the fellow on the other side finally dropping his suit because he could no longer afford to litigate, he had said.
I asked Brooks if he was concerned that his client would be litigated to death. Brooks’ response: “No.”
Copyright 2011 Laura Gilbert
Subscribe to:
Posts (Atom)