A Breakdown in Appropriation

A New View on Using Copyrighted Images

By MICHAEL MCCULLOUGH          April 30, 2013

When a Federal court scratches its head about how to regulate the art market, get ready for total baldness as you start tearing out your hair. Last week, a Federal Appeals Court in New York issued one of the daftest opinions of recent memory in the copyright infringement case against Richard Prince. As you read the decision you get a sense that the court not only misunderstands the art market completely but that it lost track of what the copyright law was meant to protect. If the decision is not overruled by the Supreme Court then the case will certainly change the way artists use appropriated images.

I don’t think the judges ever thought to consider the difference between artistic and commercial achievements in the art market, a common problem in our larger society. And you can see this coming from a mile away when they cart out the Great White Father, himself, as the poster boy for 20th century expressionism. They describe Warhol’s work, incorporating appropriated images of Campbell’s soup cans or of Marilyn Monroe, as commentary on consumer culture and exploring the relationship between celebrity culture and advertising. The first error in this reasoning is that it’s Duchamp and not Warhol who sets the standard for artistic expression in the 20th century. The court forgets that appropriation, at its core, is a philosophical inquiry into a person’s relationship with the material world and not a psychological tour of the various artists’ and patrons contributing to the dialogue. Furthermore, Warhol’s appropriations were largely of images already commercialized, as his intent was to comment on a commercial, consumer society; since the images had been put into the commerce to promote products or people, the people who owned those copyrights were happy for Warhol to exploit them. During his lifetime, Warhol retained the copyright to his own artworks and never addressed the issue of any rights of the Campbell Soup Company. It’s interesting how the court completely misses that Warhol’s use of Campbell’s copyright was certainly a copyright violation in 1962. Warhol never sought permission from the Campbell Soup Company to paint their soup cans, but, then again, the company viewed his use of their copyright as amusing, expressive, and confirming the status of their tasty soup in American culture. All of this is aside from the fact that it was free advertising for Campbell’s, something no marketing department would balk at. It was only after Warhol’s death, when the Andy Warhol Foundation began making licensing agreements with various manufacturers to use Warhol’s imagery on products, that there was an official legal agreement between the Andy Warhol Foundation and Campbell Soup Company. Presently, both parties own a stake in the copyright and neither party can make licensing agreements without the other party’s permission.

I won’t even begin to address Warhol’s use of celebrity images, as that discussion could take volumes to complete. Suffice it to say that most, if not all, of Warhol’s celebrity subjects would have happily given their and their photographers’ copyrights in those images in exchange for Warhol’s endorsement of their iconic status. The fact that the court made no distinction between Warhol’s use of consumer products and his use of celebrity imagery is another sign of something gone awry.

In contradistinction, the photographs done by Cariou and appropriated by Prince were not put into the consumer culture in any comparable way to the images appropriated by Warhol. Again, the court misses the idea that Warhol’s use of images certainly violated copyrights at the time; it’s just that the owners didn’t object because they already had the iconic status that Warhol was commenting on, so the use offered no harm to them. In contrast, Prince’s use of Cariou’s images does nothing for Cariou and allows Prince to exploit Cariou’s work in a way the copyright law was meant to dissuade. And here’s another comparison that is telling: Warhol only sold five of his 32 soup can paintings at the opening show in 1962 for a hundred dollars each. On the other hand, some of Prince’s paintings and collages in the Canal Zone series sold for over one million dollars. Could the court have considered the economic exploitation as a factor in whether Prince’s use was a “fair use”?

The answer is yes, but they decided not to. The Copyright Law of 1976 allows a court to consider “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.” This part of the law is meant to favor nonprofit uses over commercial uses, but within the realm of permissible commercial uses the court could have considered the commercial exploitation of Cariou’s photographs. Instead, they decided that since Prince’s works were “transformative” they were not going to “place much significance” on the fact that the use was commercial. In essence, the commercial versus nonprofit distinction has been abandoned.

The court also said that Prince’s work needn’t comment on Cariou’s images or on aspects of popular culture closely associated with the images, as the law does not require the secondary use to comment on the original artist or work, or on popular culture. They found that twenty five of Prince’s artworks make fair use Cariou’s copyrighted photographs because they are “transformative.” The other five works were sent back to the lower court for a decision based upon the courts new standard.

Now that an artist need not justify the secondary use with some specific commentary or criticism, the new work must only alter the original with “new expression, meaning, or message” to qualify as a fair use. In that regard, Judge Barrington Parker, Jr. wrote, “[w]hat is critical is how the work in question appears to the reasonable observer, not simply what an artist might say about a particular piece or body of work. Prince’s work could be transformative even without commenting on Cariou’s work or on culture, and even without Prince’s stated intention to do so.”

Of course, the “reasonable observer” in the final analysis will be a judge, so it will be difficult for an artist to make any decisions about employing fair use without the aid of a lawyer. And that- the need to have a lawyer in the artist’s studio passing judgment on the work- might just mark the end of appropriation art as we know it.

From Koh Ker to Mediocre

A Sale Bombs and a Million Dollar Sculpture Lost in the Same Week.

By MICHAEL MCCULLOUGH          April 19, 2013

One of the affecting moments among many in Ben Affleck’s Argo is when the Hollywood producer Lester Siegel theorizes about why he was such a terrible father. “The bullshit business,” he says, “it’s like coal mining; you come home to your wife and kids and you can’t wash it off.” We know that people who work in media and public relations are expected to make things sound much better than they really are, being paid for doing that very thing. As supportive as I am of the auction market, I still winced when reading Sotheby’s press release for the Barbier-Mueller sale that described the auction as “new world record for a sale of Pre-Columbian Art.” A more sobering approach would have left that line out and started off with the next sentence where they admit that the auction “achieved less than expected.”

The sale brought in $13.3 million against pre-sale estimates of $19 million to $23 million. Even this statistic begs further scrutiny, as auctioneers always include their buyer’s premium in the sales results, thus making them look more impressive than they really are (pre-sale estimates do not reflect the premium). If one were to back out the buyer’s premium- which is a sliding scale but averages about 20%- from the Barbier-Mueller results then you get a sale of $11.1, which is 53% of the median pre-sale estimate. Put another way, only 147 of the 313 lots found a buyer, a 47% sell-through-rate which is a disastrous result for a single owner collection.

It would be interesting to know exactly what Sotheby’s was expecting from the sale when they published the catalogue. There is a general perception among art sellers that France is a more hospitable market for selling ethnographic art. The French government enforces the UNESCO accession dates, so as long as the objects were outside of their source countries before the 1970’s then the sale was safe.

Then what happened? Very simply, several major US collectors decided not to participate. And since we’re talking about sensitivities, there’s a general perception among art buyers that the US government is trying to accomplish administratively what it could not do legislatively: to stop objects from entering the country even though they meet the UNESCO standards. Ironically, the seizure last year of a Cambodian sculpture from Sotheby’s was fueling most of this speculation and, unfortunately for Sotheby’s, that case wasn’t decided until three days after the Barbier-Mueller sale.

Much of this concerning among US buyers is, in my view, unwarranted for the reasons they state; the allegations against the Cambodian sculpture could only occur because the object is site-specific, thus allowing the Cambodian and US governments the opportunity to investigate the events of the object’s removal from Cambodia. Sotheby’s was hopeful to get the same ruling as the St. Louis Museum obtained last year when a judge in St. Louis denied the government’s attempt to take the Ka Nefer-Nefer mask, another site-specific object that went missing from a storage facility in Egypt. In the St. Louis case, the judge decided that the government failed to state a factual statement of theft. Rather, the complaint merely stated that the mask was found to be “missing” from Egypt in 1973.

In Sotheby’s case, the Judge decided that the government did provide a factual basis that the sculpture was stolen from Cambodia. According to the government’s amended complaint, the sculpture was stolen from the temple complex at Koh Ker in 1972 by an “organized looting network” and shipped to Thailand for sale by a dealer in Bangkok. Never mind that there was no specific information about who removed the object, exactly when it was removed and under what circumstances; let’s just accept the fact that it takes more to impress a judge in Missouri than it does in New York. And since the government was able to point to laws in place in Cambodia in 1972 that purport to deem the sculpture property of the Cambodian government, there is reason to believe that Cambodia owned the sculpture at the time of its taking.

In fact, very few cultural objects are from specific or known sites, so the decision in the Cambodian sculpture case has limited utility. What’s more significant was the government’s dedication to the case, as the initial decision to seize an object will always cost the owner at least fifty to a hundred thousand dollars in legal fees just to try to dismiss the case. Moreover, it’s unlikely that Sotheby’s had any idea about the sculpture’s removal from the temple in 1972, a fact that was discovered by the joint investigation of two governments with dozens of investigators examining the case. As a matter of fact, a private seller could never match these resources and herein rests the real uncertainty in the market: exactly how much investigation need a seller do in order to avoid seizure? In the case of a site-specific object, the answer seems to be whatever it takes to exhaust every possible doubt about the object’s ownership, a proposition that’s commercially unfeasible but for the most expensive objects on the market.

The most puzzling part of the whole story is why Sotheby’s waited until after the sculpture was imported to investige the object’s status. In retrospect, that was a costly error that can’t be explained by the usual “mistakes were made.” Much of the government’s criticism of Sotheby’s was unfair and exaggerated, showing a real lack of sophistication, but the failure to protect its interests sits squarely with venerable auctioneer.

I suspect that Sotheby’s and the sculpture’s owner will attempt to settle the case in an effort to avoid the cost of having to endure an expensive and uncertain trial. Even if they were successful at trial, the object would only sell for a fraction of the original asking price, so very little would be gained by continuing to pursue the case. Sotheby’s only real chance at success was to convince the judge that the Cambodian laws were too vague to be enforced and the story of the object’s removal too uncertain to be reliable, and that attempt has failed. This demonstrates the impossibility of importing site-specific cultural objects until clearer laws are passed defining exactly when an object can be considered stolen.