UPDATE:
Patrick Cariou appears to have a better case than I first thought. Take a look at these examples where Richard uses most of the image and then add to that the possibility that Patrick’s images have appeared in a gallery at some point in time. There certainly is a case for harm to the potential market for the original copyrighted work which along with the amount of the image used is the main test for infringement in this case (that’s how I see it anyhow).
Here’s my previous post:
Cityfile has the exclusive (here) on a lawsuit filed by photographer Patrick Cariou against Ricard Prince, Gagosian Gallery, Lawrence Gagosian and Rizzoli International Publications in federal district court (here).
Unlike the most well known instance (here) where Prince appropriated another photographers work for his art, the images he used this time are owned by an individual photographer (from Patrick’s book Yes Rasta) and not a corporation. This should be a very interesting test of fair use because from what I can tell he’s taken only parts of Patrick’s images combined them with other images on a canvas and painted upon them.
I think this is going to be a tough case for Patrick because of the following:
“The fourth fair use factor – effect upon the potential market or value of the copyrighted work – considers the extent of harm to the market or potential market for the copyrighted work caused by the new work. This test evaluates the potential as well as actual financial harm to the original copyrighted work, as well as to current and potential derivative works.
The United States Supreme Court has declared this fair use factor the most important element of fair use. Therefore, those who wish to use another’s copyrighted materials without permission must decide whether or not their utilization of the copyrighted material is going to harm either the present or potential market for the copyrighted work.” (from PubLaw.com)
I’ve tried to argue in the past that photographers enjoy the benefits of fair use all the time when taking pictures that have copyrighted material in them but Richard Prince certainly takes this idea to the extreme every time.
91 Comments
I wonder if anyone has ever tried to appropriate one of Prince’s works? The reason I ask is, that when the Cowboy copyright issue first came to light, I thought it would be kind of fun to post one of Prince’s creation on a blog, divide it into a few hundred pieces and then invite artists to reuse a piece in one of their own works. Would Prince sue? Based on how I read the law, I’m guessing he probably would and he would probably win. Hence no blog. Fair use is a tricky matter.
If anything, this is great publicity for Prince.
I’m not a lawyer so I have no idea how this will play out. But if the case were based on common sense instead of the law, I think it would be an easy decision for the judge. I’m not sure which is more absurd–that people pay so much for his photos of photos he didn’t take, or that the law allows him to do it.
I explored a range of strong emotions on this topic on so many levels.
The big question photographers need the answer to is;
“Would Cariou have been better off if he had incorporated and sued as a business, rather than on the copyright infringement as a singular artist with copyright ownership?”
DF
What Richard does is similar to what we hear in rap tracks in that he remixes other photos into new visual art. I think that if he gets a proper license (like what a rapper must do) from the original artist then cool but if not then he’s gonna get sued.
Hey what if I take photos of Princes work then remix it into my own and make millions? Would Prince sue me? Bet on it.
@Giulio Sciorio, I agree. Prince should have to license these images from Cariou.
If he decides not to, and Prince sells the work, then Cariou should get a percentage of the sale, based on what percentage of the work is his.
@Giulio Sciorio,
In response to wondering if Mr. Prince would sue someone who took his artwork and used it for there own. Well someone did just that in NYC and Richard didn’t sue but actually bought one of the pieces. He encouraged it. I personnly don’t like his work, but if he did sue someone, he probably would be considered a hypocrite. I don’t know the artist’s name, but I know someone who knows Richard and heard it directly from him.
@Annomonuss Bleek,
Of course he encouraged it Prince makes millions off or wealthy that have nothing better to do with their money. If he ripped off one of my images and made millions with out my permission and license I’d drop kick his ass down Broadway.
What Prince does is no different, if less skillful, than what Robert Heineken or Robert Rauchenberg have done for decades. Thomas Ruff has made a career for himself from “appropriating” work from others. I find certain aspects of this form of art compelling and others maddening. If someone takes an image and truely transforms it ala Rauchenberg or Heineken I have to say I’d be thrilled to have my work stolen for such purposes. But it’s always humorous to me reading art critics blather on about these guys who simply copy an image, enlarge it 20 times and sell it for a couple hundred grand. At least in this case Prince is manipulating the stolen images. Which is more interesting than his “re-creations” of vintage muscle cars.
@Robbie, Beyond theft of work – another other question comes to mind – our responsibilities to each other as artists.
The photographed subjects who released permissions to Cariou, are in fact, living people. They trusted that he would care for the images, and their use. I suspect there was an understanding, prior to shooting.
Should Cariou have to answer the telephone calls from any of his subjects, their family members, or worse any group representing the Rasta culture, regarding the misuse of the photographs by another artist? An artist who did not ask permissions for usage? I think it is a precarious position to put another artist in the hot seat, while the benefiting artist marches on their merry way. Let’s not even begin to talk about stomping all over the original photographers “vision” of how his work should be displayed.
The subjects used are living people, and not objects. We aren’t talking about an object, such as a can of soup. Thankfully the can of soup won’t get it’s feelings hurt because it was betrayed or embarrassed publicly. It’s worth discussing.
As photographers must build trust with subjects. Sometimes this can take a long time to develop and nurture. I find the issue bothersome, because in one fell swoop, the act of one artist can have trust evaporate for other photographers.
ie: Mapplethorpe and the NEA. Greenburg’s Atlantic Mag fiasco and it’s future affect on trusting future photographers.
It’s the pebble in the pond….
@Debra Frieden, fear trust fear. I don’t get fear. Especially fear about art.
Ever since the photograph was invented, people have been manipulated to look one way or the other. A photograph in itself is a manipulation of reality. It’s been a tool for generations to make a statement of one kind of another.
Eddie Adams lamented his photo of the General executing a viet cong prisoner in Saigon because the general was demonized from all sides.
I suppose the point is, manipulating people in photographs isn’t new and any “future” effect it would have on “trust” has already happened and has been happening for decades.
And that is why photography is so powerful.
@craig, This topic is a great discussion. I agree, photography is extremely powerful.
Actually, I find the issue of the models’ consent a compelling legal factor in two ways:
1) We keep discussing the issue of the copyright, however I am curious if the model would have a case if they decided to sue Prince for violating their right of publicity?
For instance, the cowboy in his “marlboro man” Abell appropriation consented to Abell using it as a Marlboro ad, but did he consent to his image being used to advertise the Prince show on public banners in NYC? Were I the cowboy’s lawyer (I’m not a lawyer), I might argue that the use was clearly as an advertisement for the exhibition (which you have to pay to attend) and therefore brought his “art” into a commercial context.
2) Similarly, I wonder if Abell could make the argument in court that while the use as “artwork” may be covered by fair use laws, the use as an advertisement for the exhibition should not be. The Guggenheim charges admission to see the exhibition, so it brings the work into a commercial context.
3) In the case of the rasta men, I would not assume that Cariou got a model release from the subjects. It is possible then that Prince’s appropriation could engender a sense of distrust and make it less likely they would consent to Cariou’s subsequent use of the photos in a commercial context, essentially rendering the images unlicensable. This would very directly damage the market value of the photographs. I think it’s very possible that the “rasta man” photographed would not feel great about his likeness being pasted next to the naked women in the Prince painting.
@dude, In a very real sense, the answer is, “It depends on where everybody is.”
For instance, if Mr. Prince tried his little games in Illinois, and I were the subject of one of his pastiches, I could nail his hide to the wall the instant he made his *second* print, under 765 ILCS 1075, the Illinois Right of Publicity Act. One thousand dollars in statutory damages, fees and costs, even if I can’t prove any real damage or profits, and if I can, they’re all mine.
(Note: while I am a lawyer, this is not legal advice and may or may not apply in any given situation. Consult an attorney licensed in your jurisdiction with specific legal questions.)
@StMarc, Absolutely right! Each state has it’s own statutes, but national, & international laws are variable also.
Jurisdiction and their laws. This is where the lawsuite with Virgin mobile ad in Australia got sticky with regards to a photograph taken from Flicker of a girl from Texas. I never did know how that turned out. Did they settle?
@Debra Frieden, I don’t know how it came out. Given Virgin’s army of lawyers and extreme compartmentalization, as well as jurisdictional issues, I suspect either she got nothing or a token settlement.
@Robbie, Great work btw (visited your website).
Curious questions:
Ethics in the art establishment – It will be interesting to see if any of the national associations (art and photographic) who deal with establishing ethics criteria in the art world will cover this issue in the near future.
Art Galleries – Where does a gallery’s responsibility begin or end, promoting artwork by one artist, which includes original content by another (unrepresented) artist.
Let’s break it down simplistically. Two sources gain financially, the gallery, and the artist. But not the photographer, who in fact owns the full copyright. Clearly a gallery profits from the sale of Prince’s work.
The questions on the table are:
Where does the financial infringement of a copyright end?
Is it strictly with the artist?
Or does it then attach itself to any party or entity who also financially gains from the sale of the piece?
It is clear without the photographs OWNED BY CARIOU to begin with, the Prince artwork would be gutted of composition, therefore affecting the sale value greatly.
Secondly, I would think a gallery would blush with embarrassment that their own artist could not produce their own photographic content to use in their “vision” for a body of work.
Sheer laziness on the part of the artist.
DF
@Debra Frieden, if there is a way to make an art gallery blush with embarrassment, I would like to see it done. They lost any vestige of the ability to be embarrassed by what they hang on the wall decades ago.
@StMarc, lol, they aren’t ALL bad! You must choose better galleries……so you aren’t completely jaded.
@Debra Frieden, I think you misunderstand me. Even the most prestigious and well-esteemed galleries regularly hang “art” that any competent ten-year-old would be embarassed to have his friends see that his mother left on the refrigerator from when he was five.
I have a friend who’s a tenured professor of art at a state university and is fairly successful in the art world. They’ve told me flat out that they’ve made pieces (and whole series of pieces) just to see if anybody would say to them, “That’s not art, that’s you having us on.” So far, no luck. Unless you count the whole, “People gave me a truckload of money for them” thing as luck. They were literally laughing all the way to the bank, by personal report.
There is an abundance of crap out there, I agree. I avoid galleries who push the Emperor’s New Clothes garbage. I think alot of galleries are folding under the current market pressure. Hopefully the market will shake out and the higher quality work will sustain and survive.
I wonder if andy warhol got permission from campbells soup.
I’m not sure patrick has a case here, either legally or morally.
@craig, the difference being, there is no copyright in the appearance of a soup can nor does it have a right of publicity.
@StMarc, I would put dollar to donuts that the campbells soup can is at the very least trademarked among other things.
@craig,
I can’t speak to the letter of the law, but the “spirit” of the law is that a trademark is meant to connote a source of origin. It’s my understanding that the standard for trademark protection is based an the assumption of a “reasonable person”. I don’t think any court would rule that the Warhol soup paintings would lead anyone to believe that they originated from the Campbell’s Soup Co.
@craig, as dude points out, trademarks are of little utility in battling “fine artists.” This was even more true back when Warhol was doing his thing. Today at least they could try to use the TDRA on him, although it still wouldn’t work.
@StMarc, I can clarify this. Campbell’s hadn’t copyrighted the design on the soup can. Warhol simply got lucky.
I saw Richard’s show at the Guggenheim last year, didn’t know much about him and was very impressed by much of the work. But i’m a novice to his lawsuit history. Has he been sued by Marlboro before? If I was Patrick, I’d certainly be pissed about Prince using my work on multiple levels, and definitely consider a case. There also has to be a difference between Prince ripping off a solitary artist’s work and a corporate ad campaign.
I really like what RP does by changing the mundane, and the non-art into art. I think its provocative and quintessentially post-modern. It also is just plain ballsy by pushing the limits of copyright, and making a disgusting amount of money doing it. Ethically, and morally, totally wrong. But he certainly is providing a great topic to discuss, as we see in this forum alone .
Can I just say I hope they nail his thieving, no-talent, self-righteous hack ass to a barn door and set him afloat in the middle of the ocean?
I mean, I’d describe how I *really* feel about Mr. Prince, but people might think I was being overly harsh.
M
@StMarc, This is by far my favorite summary of how I feel. Not overly harsh. Dead on.
I really love Patrick Carious work. He has a very unique look and feel to the quality of his work. It has a beautiful poetic harmony.
@ StMarc: aye
@ Jesse: I honestly don’t see any difference between appropriating artwork created by a solitary artist and that of a corporate ad campaign. The primary difference between the two is the ad campaign was created for a purpose different than the art piece, but both may have been created “artfully” and by a single artist, or both could be created by a team of artists. To me, it doesn’t matter. The intent of the original piece has been altered (absconded) in the appropriation (appropriation, a nice word for “theft”). As has been stated already, it seems most often the original artist doesn’t give their permission for the use or receive any profits from the derivative work.
You get paid for derivatives in your commercial/editorial work don’t you?
I guess the old adage, slightly modified, applies here also:
“Those who can’t do, appropriate”
Thinking also of P Diddy Daddy Puffy.
Mike
@Mike Shipman, To clarify — The alterations of Prince (why doesn’t he just change his name to a symbol, I wonder? Oh, yeah, that’s already been proven not to work), in my mind, are not extensive or derivative enough to be seen as “original”. In the Marlboro Man as well as Cariou’s work, the majority of the piece is still recognizable and could be perceived by a casual viewer not familiar with the original artist (or of Prince and his machinations) as possible variations created by the original artist or originals created by Prince, thus creating a misunderstanding of the actual ownership (or creator) of the original image/artwork. Such confusion could certainly affect the notoriety of the original artist, especially if the appropriator had better name recognition, exhibit contacts, and promotion to be able to overshadow the original artist and also essentially appropriate the original artist’s identity (it’s entirely possible that Cariou would be seen by some as the copier of Prince’s work).
Perhaps this is Prince’s purpose. Not that I want to justify him in any way, but maybe he thinks art (or the subjects of art) doesn’t “belong” to anybody. This is my impression and interpretation of his practice of appropriation. It is certainly paying off for him so far, anyway.
That montage above – Emperor’s New Clothes boll*cks. what’s that all about? My 4 year old is doing stuff like that in “art” class.
This isn’t photography- it’s taking the p*ss.
I find it ironic that people have their panties in a bunch over Richard’s use of these images when we all line up to shoot almost free editorials. Come on, its a singular work. Not like shooting for Interview where they pay you your $25 a roll and make thousands of copies. I know I know, we shoot editorial for publicity. Do you think Patrick’s book was better known before, or after Richard used the images.
@Tri-Delt, Hmm that’s a P Hilt*n marketing angle in the works there. Any press is good press? The difference is Cariou didn’t want Princes’ help with marketing the book/photographs. The photographs were solid on their own merit.
@Tri-Delt,
Actually, considering Patrick’s book was already published by Powerhouse (a major photo book publisher, not some obscure basement operation) and since they do a good job of promoting their titles, I think it was known just fine.
If you shoot free editorial, that’s fine, but the main issue is you’re consenting that Interview can use your images. It’s like the difference between having consentual sex and being raped.
@dude, I’ve seen where Patrick’s book is: in the pH warehouse on Main St. in DUMBO awaiting the remainderman. No offense to Patrick.
I don’t understand the big deal. I see no harm in these images being used in a single piece by Richard. It doesn’t harm the work. I can’t really equate that with rape, you know, forceable sodomy, compared to a painting/collage. Lets all remember its a single piece, not multiples. I am amazed by the anger generated by Richard. Its like people haven’t absorbed the last 40 years.
@Tri-Delt, you mean, “Except for the pages from it hanging in Prince’s studio.”
The fact that Cariou’s book did or did not sell through is entirely irrelevant to whether or not Prince stole from him. I wouldn’t care if he’d never sold a single image. And, despite the implication of the original post, neither does the copyright law, at least in terms of whether what Prince did was lawful.
@StMarc,
EXACTLY.
Cariou might be the least successful photographer in the world, but as soon as he publishes the book and sells one copy (thereby monetizing his work) it has a valid market value. His case would be supported by the fact that Powerhouse has invested many thousands of dollars in publishing and promoting his images.
@Tri-Delt,
A) It’s an analogy.
B) It’s the difference between an act which involves mutual consent and mutual benefit versus an act which involves a forced imposition without the consent of one of the parties and unequal benefit, with the offending party receiving much more benefit.
Sorry to describe rape in such clinical terms, but really in the end, it’s all about consent since the physical act isn’t the issue (there are lots of kinky people out there), but the motivation, consent (or lack thereof) and aggression between the two parties. It’s about a lack of an agreed upon contract, either legal (in this case) or social (in the case of rape).
(Wow this thread is offering lots of opportunities for interesting posts.)
@Tri-Delt,
Any uptick in Cariou’s book sales will likely be a blip and over as soon as this case is out of the news. It does however change the long term market value (and also change the perception of authorship and origin).
Maybe Sam Abell is a bit more pacifist or zen or “evolved” and turns the other cheek (although he looks pretty pissed off in that PDN video interview) but the fact is, everyone now knows that image as a “Richard Prince” piece.
@dude, I disagree. I think now everyone knows it is stolen PATRICK CARIOU work.
@Debra Frieden,
I disagree – anyone who buys the Richard Prince exhibition catalog, not to mention the million dollar painting, does not know it’s stolen PATRICK CARIOU work. They think they’re buying a Richard Prince work.
@dude, Anyone who invests in RP’s art, will have the knowledge of the current litigation. I would hesitate to underestimate the intelligence of an art collector in this pricing range. Let’s not dumb down an art investors knowledge of his art and artists within their collections, and when it comes to this price bracket, they more than likely, have someone they turn to to keep them informed (what’s hot, what’s not, is there investment a solid one, and why). They will know it is Patrick Carious images now that the issue is on the table.
@Debra Frieden, “their” not “there”…..more Starbucks please!
@Debra Frieden,
Most art collectors would probably know that he “appropriated” someone’s art, but I’m not convinced that the majority of them could name the artist who originated the images (except the few cases where people have made a stink about it). Perhaps the select few who have the inclination and funds to buy a Prince work would do their research, but most wouldn’t.
I definitely think most tourists milling around in Chelsea on a weekend would not know whose work it is.
This topic creates all sorts of interesting questions for me.
My next question arises regarding the importance and need for model releases. When they are required, when they are not.
When I submit to photography competitions and contests I am required to have model releases on file. Very curious when this becomes unnecessary in the arts/photographic world.
Suspend the copyright issue. Are model releases required within this scope (Prince/Cariou question)? What are the model release requirements or non requirement issues with living persons used in art media?
Would love input on this area.
@Debra Frieden, model releases are unnecessary for artistic and editorial work. Work presented in a gallery setting (including a photographer’s website) is in the clear.
I am surprised to hear an arts competition requires them. Either that’s a case of over cautiousness or ignorance of the law.
Its like museums that forbid photography in general confound me as well with that bit of irony…
@craig, I was speaking of photographic competitions. Smithsonian Magazine has a competition, National Geographic, M.I.L.K. and many others……they want model releases on file. It’s part of their entry requirements.
Many friends do not enter because they cannot meet this particular area of the criteria for entry.
@Debra Frieden, Bizarre, its not like national geographic has releases on file for each and every face that come into their pictures in a feature. Besides being unnecessary, its completely impractical for an editorial entity to do so.
I think its a case of overly cautious lawyers run amok and not wanting to deal with people saying “I don’t want my picture in national geographic!”, even if such usage is entirely legal.
@craig, you are correct, in my opinion. Many of these contests seem to use a set of copy-and-paste rules that incorporate what are essentially perpetual copyright assignments along with full liability warrants. I won’t enter them and usually send a nasty (but polite) letter to the editor when Carolyn Wright (the Photo Attorney) mentions them on her blog. I never get an answer, although if the contest is big enough once in a while they get enough static to change the rules. PDN did this a while back and were shamed into fixing it.
@Debra Frieden,
the possible need for model releases for these works lie deep in the contest rules which now often state that once an imager is submitted it can be used by the people running the contest however they like with no compensation. this would include commercial areas.
@brugen, Exactly, I warn photographer friends about this very thing. Read the fine print. The only competition I entered this (recently last) year, which gives full license for usage is the Sony World Photography awards, as it relates to the competition. My thinking is if I placed anywhere in the top spots, the marketing and advertising benefit alone is worth more than the prizes. I couldn’t pay for that slice of premium advertising on my own. Sometimes you have to take a leap of faith, and hope for the best. This is a personal choice of course.
@craig, Wow which museum forbid photography? I can’t imagine….you must live in a very conservative area.
@Debra Frieden, I run into it from time to time. Sometimes it is practical – no flash photography for instance, because the flash can harm delicate works. But I recently came across some large outdoor installations on a university campus that had a “DO NOT PHOTOGRAPH” placard next to each one. Mind you these were outdoors. In public. And passed by thousands of people every day.
I took a picture…
@craig, Ah, I see, you mean actually photographing work within museums. I thought you were talking about curators not wanting to exhibit photography as an art medium. Sorry, I misunderstood.
Yeah, they post it because they don’t want their work manipulated…..strange how that works……
@craig, good for you. A law that can’t be enforced, won’t be enforced.
Was this a public university or a private university? Were the items visible from a public way? I went to a private university which had some godawful “modern” sculptures on the area just outside its arts center: since it was in the center of campus I suppose they could make a claim that failing to observe posted signs was trespassing. Weak tea, however.
@StMarc,
I seem to remember hearing about some flap with the big Anish Kapoor “Bean” sculpture in Grant Park in Chicago and how the artist threatened to sue people for taking pictures of it (it’s got a very cool, highly polished, reflective chrome surface).
I don’t suppose this is enforceable or legal (?) – especially since the work is in a public park, paid for with public funds and so on.
I know… you are a lawyer, but you may or may not be licensed in your jurisdiction, and this is not legal advice. ;-)
@dude, I am not familiar with Mr. Kapoor’s taking any such actions, but it’s certainly possible. What I *do* know is true that for a time the park guards would stop anybody with a nice camera from taking pictures of it and tell them it was illegal. They’ve mostly stopped doing that and have generally been responsive, as a whole, to public pressure on the issue.
Cloudgate was not in fact purchased with public funds, it was a gift to the city. Mr. Kapoor retains the copyright and the people who manage the rights *will* respond adversely to any attempt to commercially exploit images of it. However, it’s in a public space and non-commercial photographs are completely legal. You *do* need a permit for large-scale photography or cinematography in the park, and that caused some confusion at first – some people thought the permits conveyed a release or licensing rights, and they do not. The City doesn’t have the right to grant any such release or license. Other people thought that meant without a permit you couldn’t take pictures in the park, and that is likewise not true. The permits are just to prevent large-scale disruptions without due notice and to help pay for increased police presence when a permitted activity is taking place.
@StMarc, I once knew of a lawyer who got the small circular piece of land around and under the sculpture as part of contract for the artist, even though it was in a public viewing area. Don’t ask me, I do not know HOW or under what circumstances this was accomplished. I wish I could tell you more, it’s been a long time since this happened. I can’t remember all the details, but there was alot of happy winking going on with this little addition when it was agreed upon by all parties. Smart lawyer.
@StMarc, This was a public university, and the works are literally in the public way – some are mounted in outdoor paths. They are huge works, one was a good 3 stories tall.
I’d also heard about photographing the bean… absurdity. Why put it there if you don’t want people to take pictures of it? The ultimate in delusion.
@craig, please see above response.
@Tri-Delt: The difference being, I chose to shoot that editorial and I chose to take what they gave me and I chose to give them what I gave them. I could, if I wanted to, just walk away. Mr. Prince, like all thieves, does not give his victim the choice of whether to be robbed. He just does it and blames you for leaving your property where he could get at it. Whatever is not nailed down is his, and whatever he can pry loose is not nailed down.
@Debra/Craig: Actually likeness release law (usually referred to as the “right of publicity”) is heating up in recent years. A little-known Illinois law, for instance, makes what “everybody knows” about model releases – that they’re not needed for noncommercial/editorial/artistic/whatever uses – not true anymore. Several other states have similar laws or recent court decisions regarding non-released usages. The real answer is to consult a lawyer licensed in your jurisdiction and familiar with the relevant law. Note: I am a lawyer, but I may or may not be licensed in your jurisdiction, and this is not legal advice.
M
@StMarc, I always get model releases. If they aren’t interested in signing, I thank them for their time, and move along.
@Debra Frieden, may I ask if you have had your release vetted in the past few years by an attorney in your jurisdiction?
I ask because in my opinion, even the ASMP ones are iffy and are due for an overhaul.
@StMarc,
Always a great idea to have the fine print reviewed! A more tempting method of action would be to have a Rep or Senator sponsor and introduce a new piece of legislation to protect GA photographers, which is current with the issues before us in contemporary society. Or at minimum, an amendment to current law. More teeth.
@StMarc, Got any links to such cases? I’m interested. A quick google turns up illinois new right to publicity act (10 years old now), but basically it codifies the need for written permission for commercial works, and explicitly exempts editorial and art.
It does extend right to publicity to a person’s descendants though.
all the legally goodness: http://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=2241&ChapAct=765%26nbsp%3BILCS%26nbsp%3B1075%2F&ChapterID=62&ChapterName=PROPERTY&ActName=Right+of+Publicity+Act.
@craig, this law does not seem to have been extensively litigated, and the few appeals cases I’ve found on it were brought by people who were using it incorrectly. (One notable case was a fellow accused of shady dealings who tried to stop newspapers and TV stations publishing his picture on the grounds that they are commercial entities. Didn’t work.) Very few lawyers, even other IP lawyers, even know it exists. When I tell them about it they are usually very surprised.
I think you may be reading it overbroadly. It specifically says that the art exception is for a single and original piece of fine art. The instant you offer a limited edition of *two* pieces, you are no longer within its protection. Make a photograph, do whatever you want with it, hang it wherever you like. And sell *it.* The single photograph. But make multiple prints, and you’re offering a commercial transaction and you need a release.
Note: I am a lawyer, but I may or may not be licensed in your jurisdiction, and this is not legal advice.
@Marc, come on. If Prince wasn’t selling no one would care. Its not like Nike used his images in an ad campaign, on their website, and in print collateral and then cited fair use, making hundreds of thousands of copies for purely commercial purposes. There is a distinction. This is what fair use is for. It benefits all photographers, and it can taketh away.
@Tri-Delt, *I* would care. I’ve issued takedown notices to people who were running “free” websites and stole my work. (One of them serendipitously ended up in jail.) Fair Use is one of the most misunderstood and misapplied doctrines in all of law and it does not mean you can take my stuff and do whatever you want with it as long as you wear a funny hat and use words like “oeuvre.”
My work may be crap but it is MY WORK and I do not like thieves. To them I say, “Get your own crap.” Why can’t Prince just get a master subscription to iStockPhoto and peacefully mutilate all the images he wants in perfect legal bliss? Why must he take things he has no rights to? Could it be that the original source is a lot more important than he wants to admit?
I’m curious about possible damage and loss of income to the original photographer if the second (i.e. Prince) is of greater fame. From here on out the image becomes Prince’s by perception, true?
Richard Prince=Ex-lax
It looks like prince got really carried away this time
And I hope he’s gone get punish big time for this
I get a kick out of this stuff.
There is not a photographer living that doesn’t break the copyright law to some degree, usually daily.
A chevrolet, a cigarette, somebody mowing their lawn all have either copyright, trademarks, or personal use rights that a good lawyer (if there is any such thing as a good lawyer) can’t argue a compelling case.
Personally I think Richard Prince and his Monty Python effects are just middle of the road 1970’s graphic art but you have to hand it to him, he knows how to get publicity.
Regardless of his motivation as photographers we can’t have it both ways. We can’t scream copyright, ownership and plagerism and then turn and shoot everything that passes in front of our lens for free, just because we want to.
But does it really matter?
@bcooter, I agree – while I don’t personally find it tasteful, I can’t get too upset about it without feeling hypocritical.
There’s the whole I disapprove of what you say, but I will defend your right to say it, to this.
And artists complaining about someone else’s art… doesn’t get much lamer than that.
@craig, Amen.
@craig, a thinking person would do well to remember that the right to speak freely does not necessarily include the right to be taken seriously. When presented with arguments which essentially boil down to, “I think it should be legal to steal stuff I don’t want to pay for,”in the Real World, my first response is usually genuine Amusement – call it patronizing, in the original sense of the term, in that I tend to respond much the way you’d respond to a six-year-old asserting that they don’t have to go to bed if they don’t WANNA.
This seems to really infuriate people, but as I like to say, “‘Nice’ is not in my job description.” As a much *wiser* man once said, “Against the assault of laughter nothing can stand.” There is much dreck and codswollop in this world and people need to be more assertive about pointing it out. My right to laugh at them is every bit as sacred as their right to say stupid things, and every bit as important.
@craig, Lame is being too lazy to create your own artwork.
@bcooter,
Actually, most photographers DON’T violate copyright law – that’s why most of us don’t get sued or draw criticism as frequently as Prince does. It’s all about the issue of origination.
To take your example, when you take a picture of a Chevy, nobody thinks the picture IS the Chevy, or that the picture was produced by Chevy.
The issue with Prince is that he is taking a 2 dimensional work and reproducing it in it’s entirety in an exact analogue and crediting himself as the originator of the work.
To further back up my point, if some other company started producing cars that looked exactly like Chevy and had a Chevy logo on the grill, then you can bet Chevy would take issue because the implication is that the faux-Chevy originated from the Chevrolet Motors Corporation. The logo falls under trademark law (a symbol connoting a source of origin) and patent law would cover the design of the car (a specific, original design, aka “invention” in patent-speak).
This was illustrated a couple years ago when a Chinese company showed a pretty close knockoff to a BMW at the Frankfurt car show, and that didn’t even have a BMW logo on it – it was just a very, very similar (read: knockoff) design.
What about a portraitist who ask anyone he photograph’s
Copyright forms and fees here for photographers interested:
http://www.copyright.gov/circs/circ04.pdf
@Debra Frieden, it should be noted that there is a substantial discount for filing copyright registrations online, as well as a MUCH faster response time. The eCO site is not the greatest but once you figure it out you can go pretty fast.
@StMarc, Don’t you just love that they made it so easy for us? I should have posted the eCO link. Good idea.
http://www.copyright.gov/eco/index.html
I have found the easiest (and most cost effective) registrations are via my published works (books), which include large collections of photographs. Series of photographs which are considered one body of work.
Fees drop considerably if you have your photographs organized into a structure like this. If they meet the copyright submission requirements, then it really is a beautiful thing.
@StMarc, Another way to cover alot of ground for $35.00 via the copyright office, is for photographers to register their website. I registered both my text and photography images. You can copyright text alone, or images alone, either and/or both. I chose BOTH.
It is broad sweeping, a low fee, and all the database files will be recorded properly.
It’s a little bit of a pain, but photographers should definitely take the time and register, register, register.
@Debra Frieden, I know you know this…….thought since the subject came up, emerging photographers building their websites might be interested in the above. Above post was for them. :-)
All I can say is, get ’em Patrick!! I’ve been hoping someone would sue this ridiculous ‘artist’, Prince, ever since I’ve heard of him. How empty of a person to you have to be to completely ride on the coattails of other people’s work because you can’t think up something yourself, perpetuate it as your own fresh vision, and call yourself an artist?
I could make really beautiful artwork too if I took pictures of National Geographic magazines and blew them up the size of a wall, but I still have a soul.
Richard Prince and his dealers are despicable humans. They should be forced to disgorge all the profits they’ve made over the years and distribute them to the original creators of the images.
“Making art” does not excuse brazen thievery. Art is no longer a noble profession; the art world is a cesspool of aesthetically gifted money-grubbers and their con artist dealers.
Hanging would be too good for Richard Prince and his ilk.
My open letter to Richard Prince:
http://altphotoimages.blogspot.com/
A year ago, the NY Times ran an interview with one of the photographers Richard Prince “appropriated”. The man shot one of Marlboro’s famous cowboy ads, and anyone who’s shot LF in the wilderness (in winter, no less) knows how labor-intensive it is, not to mention the analog workflow once the shots are completed.
Fast-forward to the present, and Prince sells a low-quality copy of that photo for a record-breaking $1.2 million. The original photographer’s tone was polite in the interview, but it must have been infuriating to have this hack profit so handsomely off your work. I’ve heard the arguments defending appropriation and the “statement” it makes; I won’t make any blanket condemnations of the practice but at some point common sense must prevail. Prince is a well-paid thief with some flimsy art-school concepts to stand behind, and I’m rooting for him to lose every lawsuit that comes his way.
http://www.nytimes.com/2007/12/06/arts/design/06prin.html
I apologize if any of this has already been mentioned in above comments.
[…] then, in Princes’, put alongside erotic or pornographic images – see Debra Frieden comments here), and if it doesn’t meet the real expectations of the public (when corporations are the only […]
thought you would like to know: http://www.guardian.co.uk/world/2011/mar/23/richard-prince-artwork-copyright-breach
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