Patrick Cariou Versus Richard Prince: Original Versus Copy Court Ruling

Finally a ruling has come down from the US federal court in Manhattan in Patrick Cariou vs. Richard Prince. According to the New York Times Arts Beat Blog, Judge Deborah A. Batts ruled in favour of Patrick Cariou, whose published photographs in the book 'Yes Rasta' were appropriated and reworked by Prince.

Batts asserts that in order for an artist to legitimately claim fair-use exceptions, the new work must “in some way comment on, relate to the historical context of, or critically refer back to the original works,” and that because Prince had asserted a lack of interest in the original meaning of the photographs appropriated, and had profited from the usage, he and the Gagosian gallery are guilty of copyright infringement.

I find this ruling troubling on numerous counts. In the first place, Batts appears to ignore the fact that Prince began his practice of appropriation (rephotography) in the 1970s, and that his oeuvre as a whole not only refers back critically to Cariou’s photographs, but also problematize the very concepts of the original and the copy. Prince has no interest in the original meaning of the photographs because there is no original meaning in photographs!

Secondly, none of the parties in the case appear to have given any thought to the figure of the Rasta himself, the ‘subject’ of the photograph. The Rasta is also an artist after all, whose work consists in his own self-composition as sensation, a bloc of percepts and affects distinguishable by both signature and style. If there is to be any originality in this scenario, surely this would rest with the Rasta.

Yet the Rasta receives no consideration, and very likely, little or no recompense, in the same way that we whose expressions and lives are photographed or filmed and commodified by news agencies the world over, are entirely absent from contemporary equations of copyright and profit. The Rasta, whose self-composition is an inextricable aspect of living, is denigrated as an artist by the very institution of copyright, highlighting the absence of a rigorous concept of creation in the theoretical foundations of copyright legislation.

BIO: Leon Tan (PhD) is an Art Historian specializing in aesthetics, social theory, contemporary art, and the history of networked art and media. He previously lectured in Art History and Psychotherapy in New Zealand, before relocating to Sweden in 2009.