Appropriation Art from a Copyright Perspective: The Case of Richard Prince

BY: ROSANGELY FRICK

Ever heard of The Catcher in the Rye?  Not J.D. Salinger’s novel that most of us had on our required reading list in high school, but Richard Prince’s The Catcher in the Rye, published last year.[1. Kenneth Goldsmith, Richard Prince’s Latest Act of Appropriation: The Catcher in the Rye, Harriet: The Blog, Poetry Foundation, (last visited Oct. 26, 2012).] Apart from the name of the author and a copyright disclaimer, Richard Prince’s The Catcher in the Rye is in every way indistinguishable from J.D.’s Salinger’s 1951 monumental novel.[2. Id.] Prince took Salinger’s novel and published it without adding or changing anything about it.  Given the identical nature of ‘Prince’s’ work to its predecessor, it is uncertain that Prince will get away with the disclaimer on the novel that; “This is an artwork by Richard Prince.  Any similarity to a book is coincidental and not intended by the artist,” or that anyone would come up with his asking price of several thousand, which is about the same amount for a signed copy by Salinger.[3. Id.]  Just where is copyright law in all of this and why is it not protecting J.D.’s Salinger’s work?

Prince falls under a category of artists who produce “appropriation art.”[4. Randy Kennedy, Appropos Appropriation, N.Y. Times, (last visited  Oct. 26, 2012).]  Appropriation art is “the act of borrowing or reusing existing elements within a new work”.[5. Rowe, Hayley A., (2011) Appropriation in Contemporary Art, Student Pulse, 3(06), (last visited  Oct. 26, 2012).]  The concept of appropriating artwork dates back to Marcel Duchamp (1887-1968), whose portfolio includes L.H.O.O.Q., (a painting of the DaVinci’s Mona Lisa with a moustache) and also to Picasso, who painted fifty-eight different versions of Velasquez’s, Las Meninas (1957).[6. Burgard, Timothy Anglin, Picasso and Appropriation, The Art Bulletin, Vol. 73, No.3, (Sept. 1991).]

Appropriation is in some ways, a critique and a commentary against cataloguing art as original.[7. Id.]  But originality in art is multi-layered.  Originality can refer to the originality employed by the creator of the work, or it can refer to the originality of the artwork itself.  The originality of an artwork can be evaluated in terms of its aesthetic uniqueness or in the case of an appropriated work, to the conceptual creativity used in reintroducing a work of art.[8. Rowe, supra, note 5.] The latter refers to the author and the message he conveys in the recycled artwork.[9. Id.] Artists like Duchamp and Picasso, through the borrowed artwork, re-contextualize the original piece so that the audience will be able reinterpret it in a different way.[10. Id.] In some ways, appropriation art can exalt the original work by adding more meaning to it or at the very least, bring attention back to the artwork through its reintroduction into the art scene, even in cases where very little has been added to the original work by the appropriation artist.  In this sense, Prince’s The Catcher in the Rye, could be adding value to J.D.’s Salinger’s novel.

From a copyright perspective, however, Prince may have overstepped legal boundaries with his appropriation of J.D.’s Salinger’s novel and for Prince, this would not be the first time he runs afoul of copyright laws.  In 2011, a U.S. district judge held that Prince infringed the copyright of Patrick Cariou’s book “Yes, Rasta” by incorporating multiple photographs from that book into his “Canal Zone” exhibit.[11. Cariou v. Prince, 784 F.Supp 2d 337 (S.D.N.Y. 2011).]  In Canal Zone, Prince used forty-one photographs from Cariou’s book.[12. Id.]  Cariou spent six years in Jamaica taking photos of Rastafarians before having them published in “Yes, Rasta.” [13. Id.]

In response to the copyright infringement claim, Prince used what is called “the fair use defense” which states that there is no infringement as long as the use of the copyrighted material was for criticism, comment, news reporting, teaching, scholarship, or research.[14. Douglas Doneson, Supplanted, Transformed or SCREWED, Pace I.P., Sports & Entertainment Law Forum (last visited  Oct. 26, 2012).]  In order to determine whether a party makes “fair use” of a copyrighted work, the court looks at whether the second work sufficiently transforms or substitutes the original work in the marketplace.[15. Id.] The court also takes into account if the second work was produced for commercial use and how much copying is done in producing the second work as well as what impact the second work has on the target market for the original work.[16. Id.] That is, does the copied work decrease the market for the original artwork? Prince argued that he met the standard for the fair use defense because his paintings of the “Yes, Rasta” photographs were substantially transformative of the original work given that they used a different medium, conveyed a different message, and appealed to different audiences.[17. Cariou v. Prince, supra, note 10.] Cariou, on the other hand, argued that Prince’s paintings were not different enough from his photographs and that they “obliterated” the market for Cariou’ s work.[18. Id.] Judge Batts agreed and granted Cariou a permanent injunction to have Prince’s unsold works impounded or destroyed.[19. Id.] Not surprisingly, Prince appealed the circuit court’s ruling and that appeal is currently still pending a final ruling.[20. Rachel Corbett, Handicapping Cariou v. Prince: 4 Possible Outcomes for the Landmark Appropriation Art Lawsuit, BLOUINARTINFO (last visited  Oct. 26, 2012).]

The circuit court’s decision has been highly criticized, given the decision’s implications for other appropriation artists and the effect it would have on owners of the appropriated art (art whose market value might plummet if the holding is affirmed).[21. Tamlin H. Bason, Second Circuit Expresses Misgivings Over Scope of Injunction in Appropriation Case, Bloomberg, BNA (last visited  Oct. 26, 2012).]  During appellate arguments, a second circuit appeals judge stated that the decision was like “something that would appeal to the Huns or the Taliban.” [22. Id.] Perhaps this Judge’s opinion could be a glimpse of what will be a favorable ruling for Prince.  Prince’s supporters include notables like The Andy Warhol Foundation, Google, and Getty, who filed Amicus Briefs to the appeals court.[23. Corbett, supra, note 19.]  However, as Rachel Corbett explained in her August 29th article published in Artinfo, if there is in fact a black and white ruling where Prince prevails on all counts, it is highly likely that such a decision would be appealed by Cariou, potentially making its way up to the Supreme Court for a final mandate.[24. Corbett, supra, note 20.] Though Prince has many supporters on his side, a completely favorable ruling is not guaranteed.

Despite the uncertainty of the future of his appropriation methods, Prince is as bold and confident as ever in continuing to create appropriated works by pushing the envelope with The Catcher in the Rye.  Given that he changed virtually nothing from the original novel, I am curious to see if he would be bold enough to describe his new work as transformative if sued by J.D. Salinger’s estate.  Then again, I suppose there will always be creative and original defenses available to him.

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