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TOMORROW: REMIX Culture: Appropriation Art and Fair Use in the Digital Age: A Panel Discussion

REMIX Culture: Appropriation Art and Fair Use in the Digital Age
Wednesday, August 15, 2012 6:30-8pm

Join us tomorrow Wednesday, August 15th photo-eye Gallery for REMIX Culture: Appropriation Art and Fair Use in the Digital Age: a panel discussion. This discussion will focus on the facts surrounding the high-profile appropriation art case of Cariou v. Prince, currently on appeal. If you are not familiar with the details of this high-profile case, the panel may not sound like a particularly thrilling way to spend your Wednesday evening – however this case is not a hot topic that is creating buzz world wide for no reason. The final outcome of this case may redefine the future of appropriation art, extending in the realms of art in all mediums including film and music. Being that appropriation art is a fundamental aspect in this history of art, this topic is sure to insight a lively and mind opening conversation!

This panel will be moderated by our co-collaborator for the art law series Talia Kosh. Kosh is an Attorney in Santa Fe at The Bennett Firm as well as President and founder of NM Lawyers for the Arts. She counsels clients on a variety of matters, including contracts, employment law, nonprofit law and copyright law. Kosh is Chair Elect of the Intellectual Property Section of the New Mexico Bar.

Kosh has been kind enough to write an introduction to Cariou v. Prince for us, providing context and making it easy to understand the far-reaching implications of the case. Join us for the panel discussion from 6:30-8pm at photo-eye Gallery.

Richard Prince -- It's All Over
Understanding Richard Prince and Other Current Appropriations by Talia Kosh

The word “appropriation” covers a wide array of practices, from reworking, sampling, remixing, transforming, adapting -- when someone takes something that another has created, transforms it and makes it into a new creative work. In a time of blurred boundaries between user and creator and rapidly changing technologies, how do we understand what “legal use” is in appropriation art and remix culture? How do we figure out long-term solutions to safeguard the competing values of freedom of expression, privacy, property rights, cultural evolution and the progress of art and science?

The current SITE Santa Fe Exhibition entitled, “More Real? Art in the Age of Truthiness,” features a piece by artists Eva and Franco Mattes at the entrance of the exhibition: a dead stuffed cat inside a birdcage -- a sculptural appropriation of an internet photo. In preparation for moderating the upcoming August appropriation art panel, I was excited to hear about Eva and Franco's liberal and candid views on appropriation art as the art of our time, in contrast to the more common fear-based views which pervade United States law and the growing cultural norm associating appropriation art with “theft.” Eva and Franco Mattes are artists who play with and make statements about the illusions and realities of our world, and often to make such statements, one has to “appropriate” another’s copyrighted work. When they appropriate imagery in order to create, they do so because they believe that in borrowing existing imagery they are re-contextualizing the original image and allowing the viewer to see new and varied meaning.

This is the principle underlying our Fair Use doctrine, the only United States doctrine protecting creativity from suffocating under a swarm of property rights and digital copyright trolling, which is increasingly being pursued by large corporations. Certainly, the term “theft” applies to many instances of appropriation, but for many, it is a grey area, or an area that falls within the defense of “fair use.” Work is considered fair use if the artist can successfully argue that they have “transformed” the work or its meaning so as to have created another work altogether, thereby the artist does not need permission to appropriate another’s image or work.

And that, my friends, is “fair use.”

Photograph by Patrick Cariou from Yes, Rasta
Or it was. It’s all very confusing. See, there’s this big case that’s on appeal right now causing even more confusion, but it’s one of the more interesting cases of appropriation art, and so for our upcoming panel we are using it as a window to climb through the topic. The case is Cariou v. Prince. Richard Prince -- you know him as that famous appropriation artist who sells his work for millions of dollars. His most recent show in at the Gagosian Gallery in New York City was very successful. The problem: he appropriated images from a not as well-known photographer, Patrick Cariou.

Prince didn’t ask Cariou for permission, but Prince is claiming he didn’t have to because he transformed the photographs so much that they are new works with new meaning, which is a fair use defense. The lower court did not buy it, holding that Prince stole Cariou’s work. The problem with the lower court’s decision is that it was very confusing: while fair use states that you can use someone else’s image without permission to comment, illustrate a point or for parody or social comment, that use has to comment, illustrate or parody the underlying appropriated work itself. According to the lower court, this means that you cannot take someone’s photo and make your own work form it commenting on a social ill. You can only take someone’s photo to comment on their photo in your own work. If this is true, very few things are going to fall under fair use in the years to come.

I don’t think Prince is the best guy to be representing all artists out there with this major fair use case. It just sounds bad -- the fact Prince didn’t try to get permission, and that some of the works he appropriated from Cariou are entire photos and central figures depicted in Prince’s works (others are more intricate collages). The kicker is that Prince may be putting himself through all of this in order to make a creative statement on our copyright system in general. His behavior marks a departure from artists jumping to explain how their appropriation art is art -- to the point of even lying about appropriating imagery in the first place, as Sheppard Fairy did in the Obama HOPE poster case. Prince has refused to explain himself, even under oath. Instead, he chose to give non sequitur answers to the judge’s questions. Whether these answers are rebellious and creative protestations of the legal system or just indifference to the legal consequences remains to be seen.

At left, photograph by Patrick Cariou from the book Yes, Rasta. Right, painting by Richard Prince from his Canal Zone series
The other issue with the Prince case is that, increasingly, judges are making decisions about what is art (what is “transformative”) by forcing the artist to answer questions about their “intent” behind making their art. This is a very dangerous territory we are forging paths through. Many artists don’t want to describe the intent behind their creative process and many cannot do so -- does that make it any less “transformative” if an artist refuses to describe his creative process? The court in the Prince case seems to think so. If the lower court's decision is upheld, it will raise serious First Amendment concerns and ultimately could impede more creativity than it would promote, as some, including the Warhol Foundation, argue.

For our upcoming August panel, we have invited a visual artist, lawyer, art student, art consultant, and art dealer to participate in a far reaching conversation that hopes to shed light on these important questions, make new connections and raise the level of debate surrounding copyright and fair use issues.

And what is a young art student doing on this panel of experts on art? She is giving us perspective. The sometimes confusing mixed messages an art student may receive about art appropriation in a time when inspiration from images saturating the internet are a mouse click away, instills an uncertainty in our young educated artists. Often, artists who could argue for appropriation legally will not because they are afraid of what will happen to them. With a system saturated with confusion, is this approach contributing to our creative culture? Come help us find the answers to these questions on August 15 at photo-eye Gallery at 6:30 pm. --Talia Kosh

This event is free and open to the public on a first come, first served basis.

For more information contact Anne Kelly at 505-988-5159 x121 or or Melanie McWhorter at 505-988-5159 x112 or