Wednesday, November 9, 2011

The Cariou v. Prince Appeal Is Looking Even More Important, as Google and Museums Submit Briefs to the Court

Richard Prince, "It's All Over"

Cariou v. Prince is shaping up as the most significant copyright case in the visual arts in some time, as Google, nine major museums, and the Andy Warhol Foundation weighed in on the case with “friend of the court,” or amicus, briefs filed this month with the Court of Appeals.  

The losers in the federal court – art star Richard Prince and mega-dealer Larry Gagosian and his gallery –  are challenging whether the judge used the correct legal standard when she ruled that Prince infringed Patrick Cariou’s photographs when he used them, without Cariou’s permission, in a series of his own paintings called “Canal Zone.”  

Cariou photo used in "It's All Over"  
The U.S. District Court judge here in New York said that in order to be “fair use” and hence not infringing, the Prince paintings must “in some way comment on, relate to the historical context of, or critically refer back to” Cariou’s photos.   

Prince’s work failed this test, the court found, in part because Prince had testified that he didn’t give a rat’s ass what Cariou’s work meant.  (Background on the case can be found here.)

On appeal, Prince and the Gagosian defendants argue that the District Court was wrong and fair use does not require the new work to comment on the original.  Google, the museums, and the Warhol Foundation all agree.

Google's Stake 

Google has a lot at stake in fair-use cases.  To cite just one reason, it wants to digitize – i.e., copy – millions of books.  A suit between Google and the Authors Guild over whether this plan of Google’s violates writers’ copyright is currently pending in the District Court in New York, which will be required to follow any decision reached by the Court of Appeals in the Prince case. 

Google, in its brief, says it couldn’t care less whether Prince’s work is “fair use or foul.” It just doesn’t want the Court of Appeals to say anything that would prejudice the copying it does in the digital realm, and it thinks any comment requirement could do just that.

The Warhol Foundation – now that’s an interesting situation.  It’s a client of the same high-powered law firm, Boies Schiller, that also represents Prince, and Boies Schiller’s high legal fees – reportedly $7 million – helped put the foundation’s controversial Authentication Board out of business.  The firm  currently represents the foundation in an attempt to get its insurer to pay those giant fees.

Warhol and Copyright

The foundation’s brief, which was not written by Boies Schiller, essentially repeats the defendants’ arguments – no surprise there, given the law firm connection -- but it also throws in the First Amendment, arguing that the District Court decision is a hindrance to the expressive rights of artists and the public.

Andy Warhol, "16 Jackies"
What makes this brief especially rich is that Andy Warhol himself successfully negotiated copyright law without any apparent detriment to his expression.  Early on he faced copyright suits over some of his most famous images, including his Flowers and his Jackie Kennedy.  Warhol settled these suits and later changed his practice to ask permission from copyright owners.  His Mickey Mouse even bears a shared copyright of both the Warhol Foundation and Disney.

Nine museums – including the Met, MoMA, and the Art Institute of Chicago, powerhouses of merchandising and guardians of copyright – along with the Association of Art Museum Directors, submitted a joint brief concentrating on the court’s finding the Gagosian defendants liable as infringers, because, among other reasons, they knew that Prince used the work of other artists but they didn’t investigate the legality of the “Canal Zone” series.

“If broadly applied, these liability standards could threaten non-profit art museums that hold or display works of Appropriation Art,” the brief argues. That “would place a severe burden on art museums and could deter them from displaying or acquiring an important body of art.”

Dan Brooks, Cariou’s attorney, said the museums’ argument is “a parade of horribles that don’t really apply to them.”  As not-for-profits, museums are in a different category from commercial galleries.  “Their display of paintings is going to be found to be fair use,” he said.

Symbiotic Relationship

When asked why, if  their argument  was so weak, he thought the museums had filed a brief in support of the defendants, Brooks said they had “a close connection with the gallery and some of its artists.”  He pointed in particular to an email -- part of the evidence in the case -- in which a Gagosian staffer gives an instruction about the dinner after the opening of “Canal Zone”:

“Larry (Gagosian) 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.”

MoMA, the Guggenheim, and the Whitney all signed on to the brief.

Brooks described the relationship between the museums and the gallery as “symbiotic.”

Indeed, Gagosian is a power wheeler-dealer who has a hand in major museum acquisitions, and  the museums and the gallery lend each other artworks for special exhibits.  Last year’s Picasso and Marie-Therese show at Gagosian’s New York gallery, for example, had loans from MoMA, the Met, and the Guggenheim. 

In their own brief, the defendants argue that if the Court of Appeals finds that fair use requires the new work to comment on the original, Prince’s works do so.  A reasonable observer, they contend, can see that the “Canal Zone” paintings, with their drugged-up guitars players, are a “caricature” of Cariou’s placid portraits, even if Prince did not testify to that effect.

Brooks said this is “a new legal argument” about the meaning of Prince’s work.  The defendants had said “this isn’t parody” in the District Court, and now they say it is – “it’s a post hoc rationalization,” he said.  

Images: Prince and Cariou artworks taken from court documents.  Cariou's photograph Copyright Patrick Cariou.  Andy Warhol, "16 Jackies," taken from Walker Art Center website, Copyright 1999 Andy Warhol Foundation for the Visual Arts/ARS.

Text Copyright 2011 Laura Gilbert