Stanford University is home to the Fair Use Project, a team of lawyers tackling some of the most interesting and impactful copyright issues being debated today. I recently spoke with the project’s Executive Director, Anthony Falzone, about their work, Richard Prince, SOPA/PIPA, and other recent legal challenges to creative freedom in the United States.
What is the Fair Use Project and how did it come about?
We launched it about five and a half years ago because we thought most Fair Use fights weren’t fair fights. What I mean by that is oftentimes you’ll bump up against a situation where the copyright owner has lots of resources and the defendant doesn’t. There can be a tremendous cost to asserting these Fair Use rights that the Copyright Act provides to artists, musicians, authors and filmmakers. While it’s nice to have this robust set of protections, if you can’t afford to exercise those rights then they don’t mean anything. So, one of the goals was to help make those rights easier to assert for the people who needed to assert them by providing them with free legal help. Level the playing field, if you will.
I’d love to just jump right into Cariou v Prince. It’s been in the news a lot lately. I know its in the appeals process and you co-wrote a brief on behalf of the Andy Warhol Foundation outlining a new standard for what it means for a work of art to be “transformative” and therefore protected. I was wondering if you could talk about that a little bit.
I don’t think it’s a “new” standard we’re advocating. I think what we’re advocating is a more sensible application of the existing standard to visual art. It’s the question of: Did the defendant contribute new meaning new insight new understanding? That’s the existing standard that’s been with us since at least 1994 when the Supreme Court articulated it. How you apply that to visual art is open. Some people like Patrick Cariou, The American Society of Media Photographers, and The Picture Archive Council of America have a very narrow conception of what range of new meaning qualifies. Basically it boils down to the only new meaning that qualifies is something that speaks back to the original in some really direct way. So from their perspective, you’re free to say something critical about Cariou’s work or create work that has something to say more directly about it but that meaning has to be articulated by the artist in a very precise way. They leave absolutely no room whatsoever for what I think is the self-evident fact the meaning of Prince’s work, or anybody else’s, isn’t determined by Prince. It almost doesn’t matter what Prince thinks the work means because what it means to any viewer is what it means to any viewer. So I think the real problem there is that they are demanding this articulation from the artist, which is really kind of almost senseless. They want everything to rise and fall on what the artist thinks his work means. Our response is actually, “No- it’s even easier than that”. You need to look at the face of the work and decide whether there is something new there that is being contributed. That’s not to say the artist doesn’t matter. If the artist wants to explain why he thinks there’s something new there, that’s fine, we can consider that. And if the artist doesn’t think there’s anything new there you can consider that, too, but it shouldn’t just stop there. You have to consider the work itself and how viewers respond and in this case, that should be really easy. Most of the work at issue is just really classic collage. And if that’s not okay, then we’ve got a real problem because now all of a sudden a hundred years of really important art is up for grabs in terms of its legality. That’s why I think the standard that Cariou is pushing here really jeopardizes “tradition” and it ought not be accepted without a whole lot of scrutiny.
This case really highlights the huge gap between long established contemporary art practice and case law. It’s easy to see both sides of the issue (photographers should be paid for their work, artists should be able to re-contextualize and appropriate without risk of prosecution). It seems like a clear gray area, but the court ordered Prince’s work destroyed. That’s shocking to me and I’m wondering if there is a legal reason for that. Why wouldn’t they order him to pay a royalty or a penalty or something?
There are a whole bunch of problems with that particular aspect of the court’s decision. Number one, the court didn’t follow the controlling law or analyze the things they are required to analyze before issuing that injunction much less an order giving Cariou the option to destroy Prince’s work. The second problem is that you’ve got some really profound free speech implications when you run around burning art. Its not just Prince’s free speech rights that are in jeopardy, it’s the Public’s. That’s a very important part of this. Thirdly, if you just put all that aside, and you look at it from a strictly economic perspective (which I don’t think is right, but even so) look what happens here: By giving Cariou the option of destroying the work you have now delivered to Cariou the entire value of Prince’s work. Which is you know, eight figures, literally. That doesn’t make any sense. You can say, well, Cariou should have been paid but the question becomes ok- how much? What would the license actually have cost if Prince had procured it? It’s hard to imagine that it would have been more than a few hundred or a few thousand dollars. And now you’ve delivered Cariou ten, twelve, fifteen million dollars worth of economic value. That strikes me as pretty insane. So the decision to seize the work and giving Cariou the option to destroy it is probably the most ugly part of the whole case.
It does seem draconian and a lot of artists I know feel like the case is so culturally outdated, they almost feel galvanized by it to keep doing what they’re doing. But now it’s become very risky for artists, galleries, and institutions to show a pretty wide array of work- to include it in the marketplace. I think its already having an effect.
It’s already having a huge effect. I have personally communicated with a number of artists who just in the last few months have gotten nasty letters about he content of their work under circumstances that are really quite striking and surprising. There’s no doubt that this is having a very substantial impact on artists and, for that matter, museums. I can’t speak to galleries per se but there is a palpable fear out there about the risks you’re talking about. And really, one of the reasons we articulate the analysis here is that it’s critical for the protections that artists have to be reasonably clear before the fact. So they know, or at least have a fighting chance to know, which side of the line they fall on. That’s one of the reasons that when you talk about new meaning, new insight, new expression, new understanding in art, there almost has to be a presumption that it exists in a reasonable view. I think the question you have to ask is can an ordinary observer come look at this defendants work and get something new from it that was not available from the original.
I think you have to be really careful about trying to verbalize the meaning of art. One of the problems is Cariou’s analysis was born and grew up around books and literature in the 19th century. So the whole vocabulary, the whole framework that developed over time is quite oriented towards written work. Written work is a lot easier to verbalize, analyze, and describe. But when you try to translate that over to visual art everything goes haywire. What’s that Frank Zappa quote? “Writing about music is like dancing about architecture.” It just doesn’t capture what’s going on. If you force artists into this box where they have to offer up some verbalized justification that meets some very narrow test, I think what you’re doing is your just really dooming a whole important part of visual art by forcing it to be something its not, that is- an easily articulated medium. Presumably these people are trying to express themselves through visual art because words just aren’t going to do the job. If you shove them back into the world of words, it’s just not going to translate.
Right. I read Richard Prince’s testimony (laughter…) I think that’s an interesting example of what you’re saying. Yet, he is clearly one of the most important artists of the 20th century.
And he’s also very arrogant.
Yes. That, too. So it’s odd that he would be the “hero” in this situation, because he’s such an anti-hero. He’s easy to dislike, let’s say.
He hasn’t done himself any favors in this case. The way he’s responded, I think it’s palpable in the district courts. The court reacted very negatively to him and his testimony in its general response.
Seems like they really wanted to punish him.
And that’s another one of the interesting things about this case. If you read Patrick Cariou’s brief (along with the briefs submitted in support of it) it’s all about what a greedy jerk Richard Prince is. And you know, I don’t care whether he’s rich or greedy or a jerk. The problem is if you write a rule here that punishes a greedy jerk, and I’m not saying he is, but if you accept Cariou’s view of the world here and agree that Richard Prince needs to be spanked; If you write a rule that dooms Richard Prince, you also doom an entire generation of visual artists. Most of who don’t have two nickels to rub together to go horse around with licenses. The punch line here is I don’t think you should have to hire a lawyer to create art. Maybe one of the possible solutions is something we point out in our brief. In terms of the impact on Cariou or photographers there’s a huge difference between one piece of original art that’s hung in a museum or sold in a gallery versus a commercial merchandising approach, where you start putting stuff on handbags and T-shirts and god knows what else.
I think the analysis should be different in at least some ways because I think everybody intuitively realizes that it is a real problem to censor expression and eradicate a work of art. I think we need a rule that lets the art exist, and then maybe if the use goes beyond an original work, then you have a different conversation about how the rights interact with one another. So you let the art live, and then if it gets merchandised down the line, maybe you have a different conversation.
You mentioned an interesting parallel between literature and art. Could you imagine a system where artists could cite sources like authors? Would that solve anything?
Number one it’s a little harder to do this with visual art because, you know, it doesn’t have footnotes. But maybe the catalog does or the info on the wall does. There are other ways you could do it. But I think the other response, the response that the Patrick Carious of the world would have, is that it’s a very different undertaking. It comes down to how they think money should be split up. Presumably when you’re writing your essay and your quoting from who knows who, your essay is not going to generate a whole lot of commercial revenue. So you could say that’s a categorically different situation. Here we’re talking about a guy whose borrowing photographic imagery to make a tremendous amount of money. Patrick Cariou is essentially saying, “I ought to get a cut of that. It’s that simple. It shouldn’t be free for the taking because you know what, I’m an artist, too. This is my creativity.”
Before we run out of time, I’d like to talk about Golan v Holder. In that case, The Supreme Court recently ruled that works already in the Public Domain could be re-copyrighted by an act of Congress. What affect do you anticipate that decision will have?
Almost none. Here’s why: First of all, I don’t read the decision to authorize the removal of absolutely anything from the Public Domain. I think you do have to keep an eye on the specifics of this particular statute, which simply removed works from the Public Domain that could have been under copyright today, but for the fact the author wasn’t eligible because of where she lived or didn’t fill out the right form at a copyright office. I don’t read the decision as saying they could take Mark Twain out of the Public Domain or something like that. So I don’t think that it authorizes the removal of absolutely anything from the Public Domain.
Be that as it may, here’s why I don’t think it will have any practical impact. Number one, it happens to, depending on who you talk to, facilitate the entry of the United States into the predominant International Copyright Regime, which we’re now part of. This is kind of a one-time thing. But more importantly, the statute that was at issue in Golan was passed in 1994. And the world looked a lot different in 1994 in terms of the public scrutiny applied to the copyright rules Congress tries to write. I think its safe to say that the number of people who were paying attention to that bill as it went through Congress probably numbered in the hundreds. And there was almost no public scrutiny on what Congress tried to do with copyright law. Now you contrast that to today, when people have been educated about the importance of copyright rules and the effect they have on everybody’s lives and empowered by all sorts of technology that makes it much easier for people to both pay attention to what’s going on, and communicate and organize. And the culmination of all these different things is what happened in response to the anti-piracy legislation SOPA/PIPA that played out over the last several months. What happened there was a huge backlash that was driven by both the education and the tools people have to learn and communicate about what’s going on. So the bottom line is, I don’t think you could pass that statute today. I think if you tried to do that you would see a backlash on par with the one you saw against SOPA/PIPA. You know, the interesting thing now is I think its very clear that the Golan decision really shut the door on any constitutional limits on Congress’ copyright power but literally the moment that door shut, the response to SOPA/PIPA made it clear that another door had swung wide open. And the real limit to Congress’ copyright power is going to be popular opinion. So the game looks really different than it did in 1994, when it was really controlled by a handful of special interests who could afford to play the game. Now everybody is on the field.
I think these issues are some of the most important and interesting debates going on right now and I’m really glad that we got a chance to sit down and talk about them. Thank you. Do you have anything else you want to add?
My pleasure. Well, I think one thing people are thinking more about that’s reflected in the backlash against SOPA/PIPA, and it really has to be part of the conversation about any set of copyright rules you adopt whether they come out of Congress or they come out of the way courts interpret statutes. I think you have to remember that when Congress gives somebody a copyright they are handing over something really profound. They’re handing over a monopoly over speech and expression that lasts a really long time and has very profound consequences on what we, the public, can do. It literally prohibits the public from doing things that would otherwise be recognized as core first amendment expressive activity like performing a play or publishing a book. And if you’re going to give somebody rights that have such a profound impact you have to ask as the Public, “What are we getting in return for that monopoly we’re handing over?” and “What do we need to preserve?” That was one of the questions bubbling under the surface of SOPA/PIPA. People saw that this legislation was only a good idea for a handful of major corporations and a tremendously bad idea for everybody else. They saw it as a giveaway on some level and I think the question of “What are we getting?” and “What do we need to preserve?” on behalf of the public is the one that has to animate this conversation.
When you’re talking about whether Richard Prince ought to be able to do what he does, to me, it’s not really about whether Richard Prince ought to pay Patrick Cariou. The people I’m much more worried about are nineteen year olds squatting in a warehouse somewhere who are going to be the next generation of great artists. I want them to have the freedom to do what they want to do and express what they want to express. Because I think its insane to set up a copyright system that shuts down this obviously important medium of visual expression. That’s just a bad deal from society’s point of view. These are not rights we should be giving away whether it’s through Congress or any other mechanism.
If we shut down Richard Prince, what impact is it going to have on Patrick Cariou? It’s going to put some money in his pocket. If you let Richard Prince do what he did, you have to ask yourself, now what happens to Cariou? Did he lose some money out of the deal? Yes. Is that a little awkward since Richard Prince is so damn wealthy and Patrick Cariou is not? Yes, that’s a little awkward. But, that’s not the point. The point is not to compensate Cariou or make sure he gets enough money because we like him and think he should be rewarded. The whole point is we need to make sure we preserve the incentive for Cariou to create his art. I happen to think, regardless of whether Richard Prince has to pay Cariou or not, its not going have any affect whatsoever on Cariou taking fantastic photographs. His [Cariou’s] photographs were published in a book, the publishers made it available for eight years, and then it went out of print. I don’t know how well it sold, but he sold whatever he was going to sell. And no one is running around attempting to duplicate copies and sell them or even to just make prints of his work and sell them. So the core incentive there that’s going to cause the Patrick Carious of the world to keep taking great photographs is still in place. It’s not jeopardized by letting visual artists do what visual artists have done for a hundred years.
-Interview by: Kelly Inouye, San Francisco-based artist and contributor to SFAQ.
If you’d like to read more about the topics discussed in this interview:
The Fair Use Project (http://fairuse.stanford.edu/)
Apropos Appropriation, by Randy Kennedy, The New York Times (http://www.nytimes.com/2012/01/01/arts/design/richard-prince-lawsuit-focuses-on-limits-of-appropriation.html?pagewanted=all)
Public Domain Works Can be Copyrighted Anew, Supreme Court Rules, by Adam Liptak, The New York Times (http://www.nytimes.com/2012/01/19/business/public-domain-works-can-be-copyrighted-anew-justices-rule.html)
Cariou v Prince: The Copyright Bungle, By Joy Garnet, Artnet.com (http://www.artnet.com/magazineus/news/garnett/cariou-v-prince-the-copyright-bungle-3-31-11.asp)
The Cariou v Prince Series, by Cat Weaver, Hyperallergic.com (http://hyperallergic.com/tag/cariou-v-prince-series/)