Wednesday, June 10, 2015


This article originally appeared in the 6.11.15 issue of Metroland.

The internet got highly agitato last week with news of Richard Prince’s latest artworld gambit – making comments on other people’s Instagram photos, then putting a screen shot of the photo + comments on big pieces of canvas and selling them for $100,000.  Nice work if you can get it.  People were sending me articles, asking “how can he do this?” and there was plenty of general outrage all around.

            We’ve been here before, folks.  Welcome to Richard Prince’s world.  These “works”, such as they are, were actually in a NYC gallery show last fall and now they’re in a different gallery show, and for some reason people are just now going ballistic.

            Not only is this particular thing old news, it’s precisely the sort of thing Prince has been doing, and making mountains of money from, for decades.  His ouvre is “rephotography”, taking pictures of other photographs and selling them, sometimes slightly altered, sometimes not, as original works of art.  Or something.  There was “Cowboys”, a series of pictures of Marlboro cigarette ads; there was “Girlfriends”, pictures of photos of babes from biker magazines; need I go on?  Just go to his Wikipedia page for a solemn recounting of his career, complete with modern gallery-speak bullshit explaining the profound importance of his work (“this series is notable for the technique of layering digital and analog media: the application of an analog medium (acrylic) to a digitized print (ink jet) of a digitized image (scan) of an analog print (book cover) of an analog artwork (original art portrayed on the book cover)”).  Read the descriptions of his career and what his work sells for and his $10+ million Manhattan townhomes.  You’ll alternatively laugh, gasp and want to punch something hard.

            Doesn’t he get sued?  Well yes, yes he sometimes does.  Several times here we’ve talked about his recent imbroglio with photographer Richard Cariou over his “rephotographing” of Caribou’s photos of Rastafarians.  The case resulted in one really bad court decision that excoriated Prince but also would have all but eradicated the fair use doctrine had it not been overturned on appeal.  The appellate decision put things back on track, that is to say, returned the fair use doctrine to its former ephemeral, indefinable and messy state.  The case eventually settled on terms that we’ll probably never know.

            Is what Prince does fair use?  Is it “transformative” in meaning?  Is it “fair,” period?  I have people whose opinions I greatly respect, artists, copyright lawyers, scholarly pointy-headed types, who are all over the place about this.  In my most humblest of opinion, I think some of what he does is definitely fair use, some is definitely not, and most of it resides in that grey netherworld of “who the hell knows?”

            And since he’s Richard Prince and has made mountains of money selling his “rephotographic appropriation art” for astronomical prices, he can afford the very best legal representation and turn the court system into a setting for what can only be described as sublime episodes of performance art.  Where he has more fun and gains huge amounts of notoriety, which pushes the prices for his works ever skyward, and where he rarely loses.

            And one reason he doesn’t always get sued and when he does he doesn’t lose is because copyright litigation is damn expensive.  Fair use is a defense to infringement, and it involves issues like how much of the original was taken, the purpose of the taking and the subjective intent of the taker, any lost market value of the original, etc. and so on.  Issues that are so fact-intensive can grind up many hours of attorney time.  And copyright law is a fairly arcane specialty so copyright lawyers tend to charge premium rates.   And unless a work has a registered copyright prior to the infringement, each party has to pay their own attorneys fees.  So good luck finding an attorney to take an infringement case against Richard Prince on spec, even one that looks like a slam-dunk.  The case will be a hard, long, soul-killing and expensive slog for everyone involved.  Except for Richard Prince.

            Some of the “victims” of Prince’s recent Instagram caper, the postmodern pin-up group Suicide Girls, took matters into their own hands and started producing their own blow ups, indistinguishable from the ones Prince’s gallery was selling for $100,000, and selling them for $100, 0.1 percent of what Prince was getting.  Prince tweeted that this was “smart.”

            We’re talking again about Richard Prince which means that he wins!  I don’t begrudge him this one bit.  It’s beyond brilliant. The people I really resent, those I’d feel sorry for if they weren’t such scum, are the bourgeois assholes that buy his stuff, people who don’t give a shit about art or beauty or originality, but who buy this stuff thinking it will turn a profit for them, who think that owning a Prince or two makes for a nice diverse investment portfolio along with their hedge funds and real estate trusts.  I hope the fake-art market disintegrates and their $100,000 “investments” turn into the worthless pieces of canvas that they truly are.

Paul Rapp is a local IP attorney who happens to think that art, beauty, and originality are real, tangible, and as immutable as the truth.


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