Copyright Infringement: Richard Prince and Larry Gagosian respond to Patrick Cariou's lawsuit

Right: Collage by Richard Prince. Left: Photograph by Patrick Cariou

The issue of copyright infringement and “fair use” concerning visual art has been a hot topic as of late. For example, the mainstream media has devoted attention to the case involving Shepard Fairey and the Associated Press concerning Fairey’s infringement of an AP owned photograph taken by Mannie Garcia. However, there is another important copyright infringement case in the works that has received little press compared to the Fairey AP clash-- even though the outcome of the case is just as important to the art world and to copyright law as we know it. That situation involves photographer Patrick Cariou, Richard Prince, exhibit catalogue publisher Rizzoli, Gagosian Gallery, and art dealer Larry Gagosian.

For those who don’t know about the case-- Patrick Cariou, a photographer and author, filed a lawsuit against Richard Prince in December of last year after Richard Prince and Gagosian Gallery failed to acknowledge his cease-and-desist letter. Cariou’s lawsuit claims that photographs used by Prince for a series of collages were illegally borrowed from his book Yes Rasta-- which was registered in 2001.

Cariou claims that his photographs were illegally used in at least twenty Richard Prince collages exhibited by Gagosian Gallery in 2008. The collages, eight of which were sold, were priced between $1.5 million and $3 million each. Prince did not give the photographer credit or offer compensation-- and has since suggested that Cariou is a mediocre photographer.

As mentioned, Patrick Cariou did not stop with just Richard Prince-- the suit, which was filed in a U.S. federal court, also targets the Gagosian Gallery, the owner of the gallery Lawrence Gagosian, and the publisher of the exhibit catalogue, Rizzoli. Cariou’s suit claims that all parties were involved in the infringement. Thus, if the court rules in Cariou’s favor the precedent may play a role in the willingness of publishers, art galleries, and art dealers as far as working with artists who have a history of copyright infringement allegations.

In other words, if the court favors Patrick Cariou art dealers may think twice before exhibiting or promoting artists who have a history of copyright infringement allegations against them due to the potential financial burden that would occur if the infringer is exposed by a copyright owner. On that same note, publishers may refuse to create exhibit catalogues for artists who are known copyright infringers. Needless to say, a win for Cariou-- and for copyright-- could potentially change the ’landscape’ of the art world as well as the art market in general.

Richard Prince and Larry Gagosian have-- for the most part-- been silent about Patrick Cariou’s allegations-- until now. Gagosian’s lawyers have responded to Cariou’s lawsuit. The Gagosian legal team suggests that Prince’s use of Cariou’s photographs are protected under “fair use”. They suggest that the collages are acceptable due to the fact that Cariou’s photographs of Rastafarians in their native environments are “factually based”. Gagosian’s legal team goes on to suggest that the exhibition of the collages was not “commercially exploitative” and that the collages were created with a “genuine creative rationale” in good faith.

Richard Prince-- who is considered to be a pioneer of appropriation art and is often cited by copyright infringers-- has stated that Patrick Cariou’s photographs are not “strikingly original” or “distinctive in nature” and that his collages are “sanctioned under fair use”. Prince has also suggested that his use of Cariou’s photographs “poses no harm” to the value of Cariou’s work and that his use has instead increased the value of Cariou’s photographs. Prince also stated that his use of Cariou’s images reflect “established artistic practices”. However, Patrick Cariou and other supporters of copyright obviously have a different take on the situation.

Patrick Cariou has suggested that the unauthorized use of his photographs has harmed the integrity of his book Yes Rasta-- which involves photographs spanning a decade. Cariou has also suggested that Richard Prince would not have used 30 of his photographs if he were just a mediocre photograph. He feels that Richard Prince and Larry Gagosian are arrogant for suggesting that his photographs are not original or distinctive.

In the suit Patrick Cariou demands that the unsold artworks and exhibit catalogues be destroyed. Cariou also demands that the owners of the sold paintings be informed that it is illegal to display the work. This means that if the court sides with Cariou you will be hard pressed to find the Richard Prince collages involving Cariou’s work exhibited in a public collection-- or anywhere else for that matter. Needless to say, this case could be groundbreaking in that it will establish some order concerning how “fair use“ is interpreted-- either for or against it. The outcome of this case will drastically change the art world / art market.

While Shepard Fairey’s case against the Associated Press is a breeding ground for media buzz one could argue that the outcome of Patrick Cariou’s lawsuit against Richard Prince and Larry Gagosian is debatably more important for artists to observe-- especially artists who support copyright. It is true that if Shepard Fairey / Obey Giant Art Inc. wins against the AP it will set a legal precedent that will give companies-- like Obey Giant Art Inc.-- more pull when using copyrighted images for merchandise. However, the case involving Patrick Cariou and Richard Prince hits closer to home within the art world.

The case involving Cariou, Prince, and Gagosian will set a legal precedent that will effect the ability of artists to protect their copyright within the art world itself-- to protect their work from gallery represented artists and art dealers who-- debatably-- have more financial resources going into a case involving copyright infringement. Thus, emerging artists who support copyright should keep an eye on the outcome of Cariou’s lawsuit. I would go as far as to say that art dealers who support strong copyright should keep a watchful eye on the case as well.

Honestly, artists are not the only individuals harmed by weak copyright protection. Art collectors and art dealers can be harmed as well. Why invest in a work of art if it can be mass produced without restraint by any individual or company? The art market will be meaningless if we continue to stand back while copyright is chipped away to the point that artists are unable to uphold their copyright in court. Is my opinion extreme? Perhaps. However, there are enough examples of extreme interpretations of “fair use” to go around-- and people blindly accepting it-- to cause concern.

Links of Interest:

Fair Use in a Nutshell:A Roadmap to Copyright's Most Important Exception -- CopyLaw
www.copylaw.com/new_articles/fairuse.html

Richard Prince and Gagosian fight back over copyright -- The Art Newspaper
www.theartnewspaper.com/article.asp?id=17147

Patrick Cariou Versus Richard Prince -- Myartspace Blog
www.myartspace.com/blog/2009/01/patrick-cariou-versus-richard-prince.html

Photographer Patrick Cariou Sues Richard Prince for Copyright Infringement
www.pdnonline.com/pdn/content_display/photo-news/photojournalism/e3i4b1f65d43468689993c27258f9c4eaf0?imw=Y

Take care, Stay true,

Brian Sherwin
Senior Editor
myartspace.com
www.myartspace.com
Myartspace Blog on Twitter
www.twitter.com/myartspace_blog

My Response to Shepard Fairey concerning his ‘AP, Obama, and Referencing’ message on ObeyGiant.com. Part 4

Part 1
Part 2
Part 3


Copyright is very important concerning the market and technology of today. People talk about how “fair use” needs to be extended due to the technology of today-- they feel that an extreme interpretation of “fair use“ is needed to secure creative freedoms. They often forget to mention the ease in which an individual can make reproductions from images found online today and the fact that many of the artists advocating for extended “fair use“, such as Shepard Fairey, profit from the random images they find online.

They are waving the banner of creative freedom when in reality the focus is on profit and profit alone-- their profit. Profit with total disregard for the profit and market of their peers. That is why Shepard Fairey is a target for my criticism-- and why he will continue to receive criticism until he takes responsibility. Unfortunately, he tends to use his charity work as a shield or resorts to having his friends rattle sabers when faced with criticism.

The fact remains that a skilled artist can use computer programs to alter an image they found online in order to suggest that it is his or her own-- or he or she can simply print off copies of the image in order to make changes to it. That is not to suggest that artists using these programs are not artists or that certain aspects of computer based art is of no value. It all comes down to responsibility and respect for other artists.

Shepard Fairey, to me, represents artists who display neither. Those who support his extreme view of “fair use” either don’t care about how hard it is for artists to establish a market for their work or they embrace his practice within their own methods of artistic creation involving works for profit.

My issue with extended views of “fair use” is that an emerging artist can spend months or years working on an oil painting or sculpture only to end up with another artists using an image of that painting or sculpture for a project that may have only taken days to create. In a sense, you could say that the artists working in traditional mediums need to have their work protected from the technology of today. Telling those artists not to upload images online is not the answer.

All artists deserve to gain exposure online knowing that their work is protected by strong copyright. There is room for “fair use” as long as it is limited and does not destroy or burden the business of emerging artists before they have a chance to rise on their own. Unfortunately, copyright is constantly under attack.

As mentioned earlier, more artists than ever are making a living or part of their living from selling their art. These artists need to know that their images are protected. Their collectors need to know that their investment is secure. In other words, artists must be able to defend the exclusive rights to their art-- to their business and legacy. If Shepard Fairey wins against the AP it will be yet another blow to artists who desire to embrace the market aspect of art. Throw the romantic image of 'the artist' aside! The idea that art should not involve business is a fantasy when one consider the art market of today-- Fairey knows this. So do I.

That is why so many art organizations and individuals have stood against orphan works legislation in recent years due to the fact that if passed the legislation would have greatly reduced the ability of living artists to protect and defend their art in court. Those same people should stand against artists like Shepard Fairey who fly false banners of ‘artistic freedom’ and ‘free expression’ during legal cases involving copyright infringement.

After all, the artists who cry ’artistic freedom’ and ’free expression’ when exposed for copyright infringement often do it in order to protect their profit rather than the way in which they work. Look at Shepard Fairey’s lawsuit against the AP-- it makes it clear that he desires to protect the profit made from the image as well as future profit. The issue is not necessarily about the AP-- the fact remains that Fairey could have done this to a fellow artist as he has done in the past.

Again, if the AP loses to Shepard Fairey it will mean that the door will be open further when he decides to ‘reference’ artwork by an emerging artist. If he wins against the AP it will set a precedent that will greatly harm the ability for all artists to defend their copyright in court. I can't stress this enough!

I realize that copyright issues can quickly become a debate between freedom of speech/expression and control. However, suggesting that supporters of strong copyright are attacking creative freedom is not exactly fair considering that the issue of copyright infringement does not become an issue until price tags are involved.

If an artist wants to explore the work of another artist directly, fine-- it becomes an issue when the artist attaches a price to the ‘new’ image or produces prints of the ‘new’ image for profit. We would not be facing this debate if it were not for the fact that some individuals-- Shepard Fairey for example-- think that it is acceptable to profit off of the hard work of others. His case against the AP is not about creative freedom or any of the other similar rhetoric spewing from his lips-- it is about his desire to profit off of others without consequence.

Securing creative freedom is one thing-- the desire to legitimize irresponsible and disrespectful appropriation for profit is another. Creative freedom is not under attack-- the rights of artists to secure their artwork and images of their artwork by copyright is. The ability for artists to protect the market for their art is under attack. Those on the other side of the aisle continue to wave the banner of creative freedom-- I wish they would just come out and say what their battle charge is really about. They want to be able to profit off of the works of others while at the same time protecting their ‘new‘ images from “profiteers“, “mimics“, and “parasites“. They want the best of both worlds. Point that out and those artists will often flee from a debate on this issue.

Think of it this way-- many of the artists who support an extended view of “fair use”, such as Shepard Fairey and Joy Garnett, are the same artists who create art utilizing the work of others for profit. They are represented by galleries-- they know the business side of art. So are they really champions of freedom and free-culture? Or are they just protecting their own business by supporting standards that would make it harder for other business-minded artists to protect their images from their use? If it is not about profit you would think they would be more than willing to 'spread the wealth' with the artists and photographers they 'reference'.

Don’t get me wrong, “fair use” is important-- however it should not be extended to the point that a widely known artist can base his or her career working directly from artwork by relatively unknown artists-- and other individuals-- for profit. This is why I have concerns about Shepard Fairey and what he represents. The contradictions and hypocrisy is tiresome. I’m not attacking creative freedom with my opinion-- I’m standing up for what the majority of artists have fought long and hard for. Don’t confuse creative freedom with the need for some artists to profit off of other artists.

To put it bluntly, it is going to be horrible if artists allow their rights to be stamped out in the name of creative freedom when the artists leading this charge, such as Shepard Fairey, are thinking more about their bank accounts than real creative freedom. Since when did creative freedom involve the need to profit from others? Are we defining creative freedom by dollar signs now? Let us not confuse the two! We should examine what Shepard Fairey is really saying when he uses these powerful words-- “creative”, “freedom”, and "expression".

In my opinion, he is seeking the freedom to be creative with the work of other living or recently deceased artists-- and others-- in order to profit without consequences. He desires the freedom to go against their intentions and legacy while expecting others to ‘obey’ his intentions and legacy. He is no different than the people who strongly supported aspects of the recent orphan works legislation which would have harmed the ability of living artists to protect their art. It is as simple as that. If we define ‘artistic freedom’ and ’free expression’ with a dollar sign the arts are truly doomed.

I must stress this-- If Shepard Fairey/ Obey Giant Art Inc. wins against the AP it will set a precedent that will make it easier for individuals and corporations to abuse the copyright of visual artists and other creative professionals. Make a stand-- disobey Shepard Fairey. Let people know that not everyone in the global art community supports Shepard Fairey's extreme interpretation of "fair use" for profit. Think of the past allegations that have shadowed his career-- think about what a victory against copyright could mean for your career. Support the exclusive rights that the majority of artists have fought hard for.

This is a 4 part rant:

Part 1
Part 2
Part 3
Part 4

Take care, Stay true,

Brian Sherwin
Senior Editor
myartspace.com
www.myartspace.com
Myartspace Blog on Twitter
www.twitter.com/myartspace_blog

Shepard Fairey decides that Steelerbaby does not need to Obey his legal team

Larkin Werner's 'Obey Steelerbaby' next to a poster by Shepard Fairey.

UPDATE: It appears that Shepard Fairey has dropped his cease-and-desist order against Cafepress and Larkin Werner's Steelerbaby store. My sources tell me it was dropped on March 10th-- days after my post about the issue.

Disobey Shepard Fairey by Brian Sherwin -- Myartspace Blog

www.myartspace.com/blog/2009/03/disobey-shepard-fairey.html

There are three rumors floating around as to why Shepard Fairey dropped his cease-and-desist order-- all of which suggest that he did it in order to save face:

1.) Shepard Fairey did not want the negative press going into his case against the Associated Press-- kind of hard to be a champion of "fair use" when you oppose it, true? After all, Fairey sent the cease-and-desist letter a week or so before his last interview on NPR. During that interview he suggested that he is going against the AP in order to secure the rights of all artists who work under "fair use". Perhaps he is finally realizing that part of that involves people being able to parody his widely known posters and trademark? Or maybe he just took a big gun away from the Associated Press countersuit?

2.) Lawrence Lessig, Anthony Falzone, and the Fair Use Project did not want negative press concerning contradictions of "fair use" in regards to their client-- Shepard Fairey. After all, the Fair Use Project supports an extended interpretation of "fair use" in general. It would not look good if their client flip-flops on his opinion of "fair use". Shepard Fairey often appears to have a selective interpretation of "fair use"-- as in it is OK for him to parody-- or comment on visually-- the work of others while at the same time sending legal threats when emerging artists parody his world renowned images. Due to this it has been suggested that Shepard Fairey is only interested in "Fairey use".

3.) Shepard Fairey did not want negative press-- period. It seems the press honeymoon is over. Recently Shepard Fairey has been ripped apart by the press-- a far cry from the constant praise he received for months due to his work for the Obama campaign. Shepard Fairey of all people should understand the double-edged sword of mass media. It can’t be butterflies and awards all the time.

Needless to say, Werner's 'Obey Steelerbaby' items have returned to Cafepress, www.cafepress.com/steelerbaby.

At some point the artist who says "question everything" must answer some difficult questions from fans, critics, and collectors concerning his ethics, the validity of his art, and the contradictions that have shadowed his career-- questions that can't be answered by a resume of good deeds. The sidestepping and using charity as a shield during interviews must stop if he is to be taken serious. To put it bluntly, post after post from SuperTouch and other Fairey friends can't hide the fact that people are demanding answers.

What are your thoughts concerning this situation? Do you think Shepard Fairey honestly supports “fair use”? Or do you feel that he is only interested in --as the Phantom Street Artist calls it-- “Fairey use”? Did the Fair Use Project make a mistake in representing Shepard Fairey? What is your opinion of Shepard Fairey in general? What are your thoughts?

Links of Interest:

Steelerbaby Blues by Chris Young -- Pittsburgh City Paper

www.pittsburghcitypaper.ws/gyrobase/Content?oid=oid%3A59932

Fair Use: Shepard Fairey and Baxter Orr by Brian Sherwin -- Myartspace Blog

www.myartspace.com/blog/2009/02/fair-use-shepard-fairey-and-baxter-orr.html

Birds of a Feather Flock Together: Damien Hirst & Shepard Fairey / Cartrain & Baxter Orr by Brian Sherwin -- Myartspace Blog

www.myartspace.com/blog/2009/02/birds-of-feather-flock-together-damien.html

Integrity Lost: Lawrence Lessig helps Shepard Fairey by Brian Sherwin -- Myartspace Blog

www.myartspace.com/blog/2009/02/integrity-lost-lawrence-lessig-helps.html

The Phantom Street Artist speaks out against Shepard Fairey in Citizen LA by Brian Sherwin -- Myartspace Blog

www.myartspace.com/blog/2009/03/phantom-street-artist-speaks-out.html

Take care, Stay true,

Brian Sherwin
Senior Editor
Myartspace.com
www.myartspace.com
New York Art Exchange
www.nyaxe.com
Myartspace Blog on Twitter
www.twitter.com/myartspace_blog