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Friday, 07 December 2007

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Rather, I think ART is dead. Copying others' work is considered ART these days?

...and the argument finally comes to the bottom line. (pun intended)

I'm not sure how this is "killing" art or photography, or whatever we're calling what, (see blog below). I, however would love to see Philip Morris, a corporate art sponsor re-aim some of their fleet of lawyers at this one, just for the sport.

Wow, this is really a juicy issue. Capable of buying braces for scads of lawyer progeny.

Paraphrasing the "current occupant", bring it on.

I would sue the guy's ass off.

Photography will be dead on this planet when the sun ceases to shine.
What the Times article seems to indicate is that "fair use" somehow includes plagiarism.

Mr Prince is a thief, pure and simple. He doesn't have the skill or talent to create his own work, so he steals from others and then calls it art. If anyone is dumb enough to buy this so called art...well, as they say, there's a sucker born every minute.

You need to remember that artists like Richard Prince started doing work like this at about the same time that artists , mostly painters , spent about a century figuring out what you could remove from a painting and still have it function as art. Artists had gotten to the point of editing the work down until Robert Rauschenberg's ( who started out as a photographer ) Erased de Kooning drawing , various artists exhibitions of blank canvases , or in one case , Vera Miturich-Khlebnikova's silkscreen of Alexander Miturich’s receipt for art supplies, and John Cage's music which in one case was silence. The idea was that the art should become so invisible so that all was left was the -idea- of art.

So Richard Prince's work is in the vein of how do you make a picture of nothing. The only way to make a really invisible photograph is to make a photograph of another photograph. The people who can't see the art in the work of Prince and Sherrie Levine are paradoxically seeing it exactly, sort of like the woman who sued the Whitney Museum and James Turrell when she was injured by a sculpture that did not physically exist

James Turrell said
"Someone fell to the ground in a piece at the Whitney Museum—because of the perceptual effects. It’s written up in Art Law, and it is a very interesting case. The woman who fell happened to be the wife of the Oregon Supreme Court Chief Justice. Her testimony is literally this: “There was this wall, actually it was a receding wall, I leaned against it, and it wasn’t there.” I have to say that these things do have a feeling of materiality and solidity, but it still looks like light to me. They possess a quality that accords materiality to light, but I don’t think it substitutes for some opaque solid surface. I can come up with this different viewpoint partly because I don’t function in the same situation as the general public—I am the maker not the observer. This is essentially a problem shared by all people in art. There are other
situations in which the actual physicality of art, whether it’s a work by Richard Serra or monumental construction by Mark di Suvero that moves, can actually injure someone. However, my work is just light and space. I think that people really ought to stand up to contemporary art. If they can’t stand up to contemporary art, what can they stand up to?"

Of course that can only lead to this - http://www.aftersherrielevine.com/

Fair use? What fair use?

Here's the section 107 of US Copyright Law:

"Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction in copies or phonorecords or by any other means specified by that section, for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include —

(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work."

And the relevant part of the section 106:

"Subject to sections 107 through 122, the owner of copyright under this title has the exclusive rights to do and to authorize any of the following:

(1) to reproduce the copyrighted work in copies or phonorecords;

(2) to prepare derivative works based upon the copyrighted work;

(3) to distribute copies or phonorecords of the copyrighted work to the public by sale or other transfer of ownership, or by rental, lease, or lending;"

Prince didn't go and shoot the same motif, he didn't recreate the photograph. He created a _copy_. Unless Philip Morris transferred the copyright to him, Prince is breaking the Copyright Law. It is a tiny teensy little step above the guy who claimed the Kennedy photo.

Dear CP,

"These days," Gracie?

Can't speak for Eastern Art (don't know it well enough), but Western (visual) Art's been doing that for as long as it's been "Western Art." Greeks, Romans, Medievalists, Renaissance, and on. Painters and sculptors copied like mad. I don't mean influenced and inspired, I mean flat-out copying. A lot of famous works are based upon much less famous ones.

If I had to hazard a very half-assed estimate, I'd say it's less common in photography than it was in the good old days.

Which ain't an observation on whether it's good or bad, but that it's a time-honored practice. Doesn't mean you (or I) have to honor it, but we can't claim history to back us up. Ya gotta come up with a more thoughtful reason for hating it.

pax / Ctein

Is it art? Oh yes. Just not very good art.

A Brief Timeline of Photography:

1900-1940: Photography is not art.

1940-1970: Old photography is art, but new photography is not.

1970-1995: Old, black and white photography is art, but color photography is not.

1995-2007: Film photography is art, especally if it is old, and even more so if it is black and white. But digital? Nope.

2007-?: Photography is dead. Nevermind.

A fool and his money are soon parted. $300,000 for a picture of a picture... hah!

The problem is that if the copycat were to in any way agree to attribute or share profits with the original photographer, it is an implicit acknowledgment that the original photographer's work is what makes the 'art' significant, and hence opens the door to copyright violation. So any sharing is verbotten.

Photography isn't dead. It's rapidly evolving. Who knows where we'll end up?

I'm having a flashback to the 1960s -- didn't we already have the appropriation debate? From Picasso to Duchamp to Warhol, this is old, OLD news.

The art world is so over this issue that one of Prince's Marlboro appropriations held the record for the most expensive photograph until last year -- he's still at #3.

The only question is what you think of the work. What bothers me is that that series doesn't add anything to the source. The act of recontextualization is not interesting in and of itself -- okay, now it's in a gallery, but so what? Intellectually, this series has nothing to say. It's an uncritical celebration of Americana, just like the original ads.

Is art dead? It was never alive in America to begin with -- this country has never had much need for art.

Is photography dead? I would look at camera sales figures... Photography is in its infancy. Of course it'll change. But do we get upset that view cameras are no longer the norm, and the main use is no longer formal portraits?

I can understand the value of photographing old posters, or art in context, or even sections of a larger work to drastically out of context to change or create meaning lacking in the original work, but I cannot understand how simple reproduction and enlargement of another photographer's work (and at dramatically lower quality it seems, from the pictures) devoid of any context or real subtraction qualifies as independent art, rather than wholesale plagiarism.

I think it highly indicative of the sophistication of your average elite art buyer/museum curator that the rip-off goes for $300,000, whereas I can hardly see them paying Phillip Morris $300,000 for a quality print of the original photo.

Clearly, Richard Prince is Satan. It's not even a clever nom de plume for the prince of darkness.

More to the point, it's garbage that that's considered fair use. If what prince is doing is Fair Use, why can't a corporation hire you for single usage, re-shoot the picture you've taken, and hang it in Times Square? How is that different than the Met selling posters and giving Krantz nothing?

Dead? Gangrenous? How about smart? Or artistically important? With those photographs, Richard Prince was making salient statements about the overabundance of photographic images in our culture, advertising, and about high/low distinctions in art. People don't have to like Richard Prince -- I, myself, am ambivalent about that work -- but they ought to know a bit more about the work before judging it.

I found this article very disturbing, even a bit infuriating. If I were Mr. Krantz, I'd be terribly upset. Though I have no warm feelings for Marlboro or the cigarette industry, the impact of his photos is undeniable.

I could see the artistic merit of Mr. Prince's work if he was somehow altering the images or saying something about how they make him feel, but just straight reproductions? I don't get it.

Why hasn't Philip Morris raised a stink about this?

It seems the context is more important than the photograph. The original cowboy picture was put in the context of advertising. The copy of the photograph was put in an art context. Think also of Andy Warhol's Campbell's Soup Can and the graphic artist who designed the label. In real estate the thing that counts is 'location' in some art it seems to be 'context'.

I remember when no less than Richard Avedon took some no name band to court for using one of his images on flyers that were displayed on East Village street corners. I still can't believe he actually did that...

On the other hand- I can't believe no one's made good on any of their threats as far as Mr. Prince is concerned.

"But do we get upset that view cameras are no longer the norm, and the main use is no longer formal portraits?"

Yes.

Just kidding.

Mike J.

Woh -- some harsh views about Mr. Prince!

Appropriation as a form of artistic expression has been around for so long that I'm surprised to see Prince triggering such anger. Warhol with his Brillo boxes in '61, e.g., appropriated someone else's graphic art to serve as 'his' fine art. (And there are surely even earlier examples that I'm unaware of -- maybe even Duchamp's urinal qualifies). And in photography itself, there's of course Sherry Levine (her "Walker Evans" series, e.g.). My point is that while you may not like the end product -- to each his/her own aesthetic taste -- there is nothing illegitimate about the process of appropriation.

Anyway, having seen the Prince exhibit at the Guggenheim a couple of times, here are my 2 cents. I was skeptical about Prince before seeing the exhibit, but no longer. I think he is a visual artist of tremendous power, with a unique vision of contemporary American life. My suggestion is to see the exhibit yourself -- see his entire oeuvre and how the appropriated Marlboro (tm) photographs fit in. Maybe you'll like it, maybe you won't, but I guarantee that you'll have a much more nuanced view of Prince: He's much more than simply a thief. The Marlboro man stuff is just an aspect of his work -- there are biker chics, naughty nurses, and lame vaudeville jokes as well, all mixed in, sometimes as photographs, sometimes collages, sometimes oil paintings.

What I found most interesting about Prince, though, is that while he has a great eye for selecting / cropping / re-imagining / re-contextualizing other people's photographic images, he is himself not so great a photographer. (Prince not only appropriates photographs, he takes them as well on occasion. He also draws and paints, btw -- there's a whole room of his somewhat famous "Nurse" paintings at the Guggenheim exhibit). I found it amusing while wandering through the exhibit and being able to tell, pretty accurately, which photographic images were borrowed by Prince as opposed to taken by Prince himself -- the interesting ones were usually appropriated ....

"More to the point, it's garbage that that's considered fair use. If what prince is doing is Fair Use, why can't a corporation hire you for single usage, re-shoot the picture you've taken, and hang it in Times Square? How is that different than the Met selling posters and giving Krantz nothing?"

Because that is a violation of an assumed or legal agreement of the intended use. That is why people take down payments and make people sign contracts. If you hire me to design a website and I give you a single mock and a price, you might reject it and go hire someone else to do the exact same work using my design. People don't see mock ups and certainly don't get "copies" until $ has changed hands and contracts signed. I t happens all the time.........

Richard Prince did/does not claim ownership of Krantz's original work. He only claims ownership of his own "photographs" The fact is he DID TAKE the photographs in question, not Krantz. That is why he (Krantz) has never taken any action, because they are not his photo's and never will be.

On another note,

Richard took those photographs as social political commentary. He was discussing the use of photographic imagery that romanticizes a made up American idea of the Marlboro Man in order to sell a product that kills people.

The entire campaign was aimed at women. Marlboro were not considered a Man's smoke because it had a filter.

I wonder which photograph people find MOST troubling?

PS Anybody listen to David Plowden on NPR this afternoon?

This is exactly the same as the sampling controversy in the music world. If Mr. Prince wanted to incorporate someone else's work into his own he should have gotten permission. Like sampled music, taking an image without permission is simply stealing, and that is absolutely accepted legally in music. If Mr. Prince was so motivated he should have created his own unique image to say what he wanted to say. Even derivative work would be more original than stealing. In my experience that kind of theft is rarely about art and usually about laziness, and commerce. The shame is that what Mr. Prince is trying to say may well be worth hearing, but his choice of the easy way removes all validity.

" My suggestion is to see the exhibit yourself -- see his entire oeuvre and how the appropriated Marlboro (tm) photographs fit in. Maybe you'll like it, maybe you won't, but I guarantee that you'll have a much more nuanced view of Prince: He's much more than simply a thief. "

Yel

I took Yel's advice and not being able to run down to the Guggenheim, I took the virtual tour:

http://www.guggenheim.org/exhibitions/richard_prince/prince.html

So I came away from it all with this. Behind all the art speak and the justification about appropriation, at it's core it still seems to be theft to me. I also find it cynical that Mr. Prince is able to hide behind the copyright law to protect his own "work". I will say this, he is an equal opportunity copyright infringer. Cartoons, magazines, jokes, book covers and even dead artists, it's all fair game to Mr. Prince.

And to add insult to injury you can also buy a poster from the Guggenheim online store with the "appropriated" Jim Krantz photograph for only $ 9.95.

Hoov

Ain't this a nifty conundrum? Richard Prince, apparently, used a camera to take a picture. That the object he took a picture of was a photograph makes his picture different how? If Robert Polidori goes and photographs a Frank Gehry building, and then makes and sells prints, does he owe Mr. Gehry anything? After all, I'm pretty sure Mr. Gehry considers his buildings to be original works of art. And Mr. Polidori's photographs of same wouldn't exist without Mr. Gehry's original efforts. So, how would Mr. Polidori's possible claim that his photographs are legitimate works of art by virtue of their being photographic representations of an "object" differ from Mr. Prince's?

It's not really a sampling controversy.

You are allowed to make a sample if you incorporate protected speech. 2 Live Crew appropriated Pretty Women and that was held as fair use.

see Campbell v. Acuff-Rose Music.

The point behind 1st Amendment freedom of speech is that the government should not restrict speech. When you get the government to tell you how and when to make your art. I think that's a bigger problem than whatever this is.

If I understood correctly what I read on Wikipedia, 2 Live Crew parodied 'Pretty Woman' and re-recorded some of the most identifiable parts of the original recording. The word 'sampling' was never used. That's reinterpreting a work using parts of the song without incorporating the actual original recording. That's a very different issue than sampling and much murkier. A music publisher once suggested to me that my 'composition had been sampled, not the record'. I said 'baloney, it's plagiarism' and they rapidly capitulated. I'm not a lawyer, but I don't believe you're ever allowed to digitally sample a recording without permission of the copyright holder. And I don't believe this is a governmental infringement of the right of free speech - it's about the right of a creator to protect his creation from being used by another person in the same medium for profit. A recording of a recording is different from a recording of a song, and a photograph of a photograph is different from a photograph of a subject. I think it's a hustle.

I have yet to understand how graphic arts "say" anything. I believe "saying" is a property of speech (aural and written). So a picture can't "say" or "state" or "make a statement" — it's just not possible. The author cannot make a statement through a graphic work. That's best left to the literature crowd. At best a graphic work can "show" what is therein represented. And of the graphic arts and crafts the best at representing what it describes is photography.

Isn't this similar to the Art Rogers v Jeff Koons case in 1992? Rogers sold postcards of two people holding eight puppies, Koons made [or rather had made, a workshop did the actual work] a sculpture which closely followed the photo, though changing the dogs to blue.
Rogers sued. Koons claimed fair use, parodying banality. He lost.

Another thing: the reason Marlboro [Philip Morris] doesn't make trouble may be the same as Campbell not hindering, but helping Warhol: it is free publicity.

Seth — If Mr Polidori "goes out" to take a picture of a building he has made a photograph of that building and we can accept it as his view of that building as it was when he visited the site. He doesn't claim to be the creator of that building. Mr Prince, on the other hand, seems to have claimed he actually photographed the cowboy when in fact Mr Kranz had done the location work with cowboy and horse.

If I Xerox a dollar bill I will be taken to task for counterfeiting — passing something off that isn't mine in lieu of the real thing. Same scam going on here with copying pictures.

We're being asked to accept that today there are artists who are making a living by making self absorbed "in" jokes. I'd say, "Let the jokers haunt comedy clubs but keep them out of museums." If they're being philosophical and wish to make statements let them publish essays.

Another question — how much of that princely sum achieved at that auction did Mr Prince receive? Or did the middlemen once again skim inordinate profits off Mr Prince's oeuvre which is a copy of the work of the uncredited Mr Kranz?

And who's silly enough to pay 1 plus million bucks for a piece of paper? I mean are we supposed to believe this was actually paid? (I can just imagine the IRS salivating.) What does that "say" about the value of our money and labor?

"Mr Prince, on the other hand, seems to have claimed he actually photographed the cowboy when in fact Mr Kranz had done the location work with cowboy and horse."

Mike,
Your other points aside, I think we can safely assume that your statement above is not the case. Prince doesn't claim to have been the original photographer and no one thinks he is. The whole point of his exercise is recontextualization, and that can't take place if he's not providing any ironic distance from the original act of photographing....

Mike J.

Mike

Thanks. I stand corrected. My statement should have read: "Prince claims the photograph is his leaving us to assume he was actually there."

When I first saw the shot — it was shown on the internet after having achieved the auction sum of 1 million plus — I thought Mr Prince had done the live shot.

@Sam Song

Although I am not familiar with the legal ramifications of appropriating someone's *composition*, I know that some sampling of sounds and "riffs" from others' music can be permitted under certain circumstances.

It was my understanding that a sample had to be shorter than perhaps three seconds in length (though it could be less).

The first album released by notable Australian group "The Avalanches" was compiled from over 3,500 samples from vinyl records. Under recent copyright law it is unlikely that the copyright of each and every one of the sampled works had expired.

All of the samples were credited in the liner notes, however, making for a very thick booklet indeed!

@Hoover

Regarding photographing a building held to be under copyright protection and using the images for your own gain, that ground was covered in a neat case, Rock and Roll Hall of Fame v. Gentile, which Dan Heller discusses in his article about model releases (http://www.danheller.com/model-release.html#8.5).

In that case, Charles Gentile sold photographs of the Rock and Roll Hall of Fame, which is a trademarked building design. The local district court ordered him to stop. Gentile appealed and the federal court overturned the previous ruling and declared that his photograph did not violate that trademark's protections.

I suggest reading the entire ruling if you're interested in this type of thing; it has almost nothing to do with the image itself but rather the *use* of the image, as would be the case in photographing e.g. the Gehry amphitheater in Chicago (the Gehry amphitheater may not be trademarked, though protected under copyright as Gehry's creation; either case would suggest different considerations under the law).

As for Mr. Prince's works, I recognize that in photographing what was published as an advertisement, regardless of the fact that the advertisement itself consisted of an original photograph by another creator, Prince changes the context of the image in such a way that his use of it does not violate or infringe upon the interests of the image's owner.

If he had photographed a Marlboro advertisement and used it to sell a different product, he'd be halfway to jail by now. However, because the original use and protection applies to commercial promotion of a specific product and Prince's use is artistic and/or editorial, it is permitted.

Is it good art? That is a question requiring much more consideration...

This says a lot more about the art world than photography.

"With those photographs, Richard Prince was making salient statements about the overabundance of photographic images in our culture, advertising, and about high/low distinctions in art."

"It seems the context is more important than the photograph. The original cowboy picture was put in the context of advertising. The copy of the photograph was put in an art context."

Basically what the elitist art world likes to say is "blah, blah, blah...you don't understand what I'm saying." Or "this is over your head." This sounds like an answer in search of a question.

If re appropriating imagery and moving it into another context is what makes it art, then why does the "artist" matter.

Basically if I picked up garbage off the street and put it into a gallery, or maybe made photo copies and put them in a gallery it could become art. No, wait, I couldn't do that, but Prince could...

The problem with the contemporary art world is that it's an investment. It doesn't really matter what it is, what is says, how it was made, or who made it. All that matters is that the right gate keepers put their stamp of approval on it.

I really don't see why so many of you have a problem with Prince's work. Look at it this way: photographers take pictures of the things that interest or fascinate them -- the things they're obsessed with -- in many cases, pictures of the things they see every day. That's all Prince is doing. It's really just that simple. The fact that those things are themselves photographs is interesting, but not outrageous. He never, ever claimed to have been out in the West aiming his camera at cowboys. That's the first thing you need to bear in mind.

The second is that the money doesn't matter. Prince is in his mid-fifties now, but he didn't make any real money off this work for some time -- he broke far later than most of his friends and contemporaries -- and when he was first starting out, he, like most artists, had no real expectation of making any money at all. And for decades, he didn't. It really is about the art, folks: it's not Prince's fault that a bunch of rich people became interested in his work.

Oh, and re: Mike's question, "Another question — how much of that princely sum achieved at that auction did Mr Prince receive? Or did the middlemen once again skim inordinate profits off Mr Prince's oeuvre which is a copy of the work of the uncredited Mr Kranz?"

Prince receives exactly none of the money a work of his fetches at auction. No artist does. And it's not a case of middlemen skimming. It's just that the picture is the property of whoever sells it: how much does Ford receive if I sell my F-150 in the classifieds of my local paper? How much does the guy who designed it receive?

On the other hand, a high auction price will naturally lead to an increase in the price and value of the works in an artist's next show.

Walker Evans -- who I trust qualifies as "real" photographer among this readership -- re-photographed some forty years before Richard Prince. Here's how Vicki Goldberg tells it: "He commemorated the endless grid of portraits in the window of a Penny Picture Studio, where ordinary citizens had exercised their right to be represented. In effect, they posed again for Evans, who re-presented them, making the studio photographer's art his own -- years before the idea occured to the general run of artists." ("Light Matters: Writings on Photography" pp. 85-86).

"I really don't see why so many of you have a problem with Prince's work. Look at it this way: photographers take pictures of the things that interest or fascinate them -- the things they're obsessed with -- in many cases, pictures of the things they see every day. That's all Prince is doing."

No, what he is doing is plagiarism. He's not really creating anything here. I could consider his work if he - say- was working for a museum as someone who is preserving history or collecting something in the timeline of history for preservation. But as original art? No way.

Shall I drop by your house, scan all your photos, do a photoshop action of all of them, export them as black and whites and call that work my own and sell it for a high price? How would you feel about that?

- Raist

"Mr. Prince was (see last month's Vanity Fair) scraping by in a run-down NY apartment, trying to make the best art he could, and with no guarantee that anyone would ever care about his work, let alone pay him for it. Now, who are you feeling sympathy for?""

Do you have sympathy for someone who comes into your house and makes copies of all your photographs, then runs them through a photoshop plug in and sells them at a high price - because he's trying to pay his rent?

- Raist

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