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Tuesday, October 8, 2013

A follow up to Prince v. Cariou

It's pretty clear that I dislike the verdict of the recent Prince v. Cariou decision, and so I reached out a while back to Patrick Cariou.  For those of you unfamiliar with his work, look into it.  He's an exceptionally gifted photographer whose creative work demands the full protection afforded by copyright law.  We volleyed a few emails back and forth and it's worth reprinting (with his permission) a statement that followed the first decision, in which the court affirmed that Prince had violated Cariou's rights.  As Cariou told me, "here is enclosed a text... written just after the first judgement, never really published, please use it if you want...[to] represent my state of mind."   

Marcus Goffe, Kingston, JAMAICA The Ras Tafari community welcomes this Judgment. Mr. Prince’s ‘art’ distorted and misrepresented photographs of Rastafarians. The exhibit defamed the Ras Tafari brethren and sistren photographed, and by extension the entire Ras Tafari community. The exhibit also breached our religious, cultural, moral and intellectual property rights as a traditional minority community. Mr. Prince abused his freedom of expression at the expense of a vulnerable, peaceful, spiritual community and we are glad that his indiscretions have been halted by the Court. Non-Ras Tafari individuals and organisations that exploit and/or misrepresent Ras Tafari imagery, culture, words, symbols, music, art and craft without the prior informed consent of and appropriate benefit sharing with the Ras Tafari community, will be regarded as hostile to the community and treated accordingly. We will continue to vigorously monitor this and other infractions to preserve and maintain our cultural and religious integrity.

While the stakes for Gagosian and Prince are pretty clear and frankly kind of crass (can we sell this work and not be sued, what sort of profit is there in it?) the stakes for Cariou and the Ras Tafari community are much more nuanced.  It seems to me that the law, that public opinion, and that Prince and Gagosian could learn a thing or two from this statement.  The first is some sense of cultural understanding.  The Ras Tafari community in Jamaica is an intensely devout and close knit religious community that understandably is sensitive to exploitation and feels clearly as though they are a persecuted and misunderstood minority.  The access the Cariou had to them was clearly a sign of respect; Prince could not and would not have been able to achieve the sensitive, intimate look into this world because they would not have accepted him.  Moreover, in stealing Cariou's work (without so much as a gesture of asking permission), Prince's art serves no public purpose.  His art is going to end up on the walls of wealthy patrons, enrich himself and Gagosian, and never rise to the level of the type of public benefit (like the one scholarship shows) that the fair use law was designed to balance.  I'm not, I should make clear, trying to state that Richard Prince has no right to buy these books and appropriate the images as he sees fit.  He can and should do whatever he likes.  But, when you use someone else's work as the basis for a commercial enterprise (art, when sold, is precisely that) then it seems to me as though the rules shift drastically and precedent / law needs to protect the intellectual rights of the creator, even with a monopoly right to distribute or license that work.  

This seems to be in for another round of lawyering.  Cariou has an intellectual and moral claim to the work, while Gagosian and Prince have a profit to protect.  To my mind, the court should overturn the latest decision because it radically subverts the rights of authors and artists to control and license their work.  The purpose of a copyright monopoly is promote creativity and artistry here by guaranteeing that artists and authors have control over their productions.  This case should be heard by the Supreme Court, and the matter should be settled in Cariou's favor. 

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