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.
here before, folks.
Welcome to Richard
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
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.
is “rephotography”, taking pictures of other photographs and selling them,
sometimes slightly altered, sometimes not, as original works of art.
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
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
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.