An Artist's Fall from Grace sets a Precedent for Artists Everywhere...

If you read my journals you will know that I am rabid on the matter of copyright violation, never more so than in recent days when it has reared it’s ugly head right here where I post my art…
I have always held the opinion that it’s a pathetic act of desperation to appropriate another’s work in hopes of riding on their coat tails and Artist and writer Brian Sherwin agrees..
In the article below (I excerpted parts and it’s still long but well worth reading), he reports on a recent supreme court case where a photographer won a lawsuit against a prominent “artist” known for the appropriation of other artist’s works and the gallery who represented him

Brian Sherwin, is a regular contributing writer for FineArtViews. Brian Sherwin is an art critic, blogger, curator, artist and writer based near Chicago, Illinois.

  1. The result of Patrick Cariou v. Richard Prince, Gagosian Gallery, et al 08 CV 11327 (S.D.N.Y. March 18, 2011)(Batts, J.) has been at the heart of art news buzz in recent days.
    Patrick Cariou’s victory in court is a triumph for those within the art community who view copyright as an art market necessity
  1. The issue of copyright infringement and fair use concerning visual art has been a hot topic as of late. When said issues are discussed it is common for individuals to defend the alleged infringer by mentioning names of artists who have “sampled” or “referenced” copyright protected works in order to support the validity of the practice as well as to solidify it as mere fair use.
    Richard Prince is often one of the names used to defend aspects of fair use during debates about copyright and infringement. That may no longer be the case now that photographer Patrick Cariou has won his day in court.
    I for one think that it is necessary for copyright violators, such as Richard Prince, to be dethroned
  1. For those who don’t know about the case— Patrick Cariou, a photographer and author, filed a lawsuit against Richard Prince in December of 2008 after Richard Prince and the gallery representing him, Gagosian Gallery, failed to acknowledge his cease-and-desist letter.
    Cariou’s lawsuit claimed that photographs used by Prince for a series of collages were illegally borrowed from his book Yes Rasta— which was registered in 2001. The issue spearheaded heated debate about copyright— and spurred concern about business and creative practices that have long dominated the mainstream art world
  1. Cariou claimed that his photographs were illegally used in at least twenty Richard Prince collages exhibited by Gagosian Gallery in 2008. The collages, eight of which were sold, were priced between $1.5 million and $3 million each. Prince did not give the photographer credit or offer compensation, and added insult to injury by suggesting that Cariou is a mediocre photographer.
    As mentioned, Patrick Cariou did not stop with just Richard Prince… the suit, which was filed in a U.S. federal court, also targeted the Gagosian Gallery, the owner of the gallery Lawrence Gagosian, and the publisher of the exhibit catalogue, Rizzoli.
    Cariou’s suit claimed that all parties were involved in the infringement. Thus, since the court has ruled in Cariou’s favor the precedent may play a role in the willingness, or should I say unwillingness, of publishers, art galleries, and art dealers as far as working with artists, such as Richard Prince, who have a history of copyright infringement allegations. Needless to say, this ruling is a major victory for copyright advocates
  1. Since the court favours Patrick Cariou in support of copyright, art dealers may think twice before exhibiting or promoting artists who have a history of copyright infringement allegations against them due to the potential financial burden that would occur if the infringer is exposed by a copyright owner.
    On that same note, publishers may refuse to create exhibit catalogues for artists who are known copyright infringers.
    The win for Cariou, and for copyright, could potentially change the ‘landscape’ of the art world as well as the art market in general.
    In addition the ruling gives support to artists who rely on their own creativity to create artwork and artists who work within the scope of fair use in a legitimate manner. In other words, the days of wide interpretation of fair use, at least within the mainstream art world, may be coming to a close
  1. Photographer Patrick Cariou learned of Richard Prince’s infringement in the same manner that many victims of copyright infringement do… by word of mouth. Cariou obviously took notice of Richard Prince’s 2008 exhibit at Gagosian Gallery in New York. Upon viewing the images and press materials the photographer promptly sent a cease-and-desist letter to the gallery.
    However, the gallery did not acknowledge Cariou’s letter…the exhibit did not close until the scheduled closing date. Needless to say, representatives of Prince and Gagosian did not take Cariou’s request seriously
  1. The reaction from Richard Prince and Gagosian Gallery spurred Cariou to research the extent of the alleged infringement further. The lawsuit and court ruling may have never happened had Prince and Gagosian shown Cariou some courtesy. The irony being that Cariou used the words of Prince and Gagosian to support his infringement claim. The lawsuit cited interviews and press releases that stated clearly that Prince had scanned images from a book…. the book mentioned happened to be Patrick Cariou’s, Yes Rasta.
  1. In the lawsuit Patrick Cariou demanded that the unsold artworks and exhibit catalogues be destroyed. He also demanded that the owners of the sold paintings be informed that it is illegal to display the work.
    Judge Deborah Batts has granted Cariou’s request, which means that you will be hard pressed to find the collages exhibited in a public collection. Richard Prince is an established artist with access to a legal team that should have advised him in order to prevent the situation in the first place. That same consideration could have been given just as easily to gallery owner Larry Gagosian. Both, in my opinion, attempted to slap the face of current copyright law…they deserve any penalties thrown their way
  1. The result of Patrick Cariou v. Richard Prince, Gagosian Gallery is a groundbreaking ruling in that it will, hopefully, establish some order concerning how fair use is interpreted.
    This ruling, which is in favor of copyright, will potentially spur drastic changes in the art world.
    As mentioned earlier, gallery owners, exhibit curators, and publishers may think twice before promoting an artist who has a history of copyright infringement allegations. It may spur changes in college/university art departments throughout the United States as well in regards to how serious copyright is taken. After all, this ruling will no doubt open the door for others to file against alleged copyright infringers…it will keep art professionals on their toes
  1. Legal precedent is important… especially where copyright is concerned. In that sense, the ruling will help to set a standard for how fair use can be used in defending against allegations of copyright infringement.
    In my opinion the ruling empowers artists who are often hesitant to display their best works of art online out of fear of being victimized by opportunists. Both Richard Prince and Larry Gagosian were opportunists due to the manner in which they treated Patrick Cariou… they are two high profile members of the art world who have learned that the opportunity fostered by wide interpretations of current copyright law can easily become folly
  1. Richard Prince… who is considered to be a pioneer of appropriation art and is often cited by known copyright infringers, such as artist Shepard Fairey, has stated in the past that Patrick Cariou’s photographs are not “strikingly original” or “distinctive in nature” and insisted that his collages are “sanctioned under fair use”.
    Prince has also suggested that his use of Cariou’s photographs posed “no harm” to the value of Cariou’s work and that his use has instead increased the value of Cariou’s photographs. Prince has also stated that his use of Cariou’s images reflect “established artistic practices”. However, Patrick Cariou, and other supporters of copyright obviously have a different take on Prince’s opinion. Obviously Judge Batts, the ruling judge, shared the opinion that so many champions of copyright have had over the years
  1. I think it is very important for artists to take grasp of this ruling and what it means for their artwork and business. This legal precedent will help artists to protect their copyright within the art world itself, to protect their artwork from gallery represented artists and art dealers who…debatably…have more financial resources going into a case involving copyright infringement. Thus, the ruling is a major victory for all artists, and I will go as far as to say that it is a victory for creativity as well.
  1. Richard Prince and Larry Gagosian could have prevented this legal precedent from occurring had they looked past their arrogance and shown minimal respect towards photographer Patrick Cariou. I for one believe that true creativity is protected when artists are strongly protected by copyright law.
  1. Strong copyright law is a vital aspect of the art market no matter what level of the market you are examining. Artists are not the only individuals harmed by weak copyright protection. Art collectors and art dealers can be harmed as well. Why invest in a work of art if it can be mass produced without restraint by any individual or company? Why deal in art if it can be creatively hijacked by a famous artist to further his or her own success at another art gallery? The art market in general, would be meaningless if we continue to stand back while copyright is chipped away to the point that artists are unable to uphold their copyright in court.
  1. The ruling of Patrick Cariou v. Richard Prince, Gagosian Gallery is a triumph for copyright advocates in the United States. I take great joy in the fact that an art world Prince can be dethroned from a legal standpoint. Court rulings like this secure the art market for the majority of artists, art dealers, and art collectors, and champions true creativity to reign within the context of the art world. Brian Sherwin


Read Peter Hill’s very erudite post on Copyright in his RB Journal HERE


  • Les Boucher
    Les Boucheralmost 4 years ago

    Woooooooooo Hooooooo Go Patrick! I’m with you mate….

    Prince has also stated that his use of Cariou’s images reflect “established artistic practices”. What a bloody joke that statement is.If people don’t have the artistic talent to be able to produce their own work then neither they,nor the gallery, should be allowed to show it…I’m with the judge on this.We need more farsighted Judges like that throughout the world.

    One can only hope that this becomes a precident in Law which is adopted world wide not just in the United States.

  • The laws in the U.S regarding copyright tend to be adopted by other countries very quickly….this kind of thing really burns me up…at those prices he could have shared the profits with the photographer, but he was too greedy…imagine the nerve of him stating that the photos were mediocre, but they weren’t too mediocre to be used in his work…

    – ©Janis Zroback

  • Deborah Lazarus
    Deborah Lazarusalmost 4 years ago

    I have removed more than one artists from my groups for this very thing. Just because they look nice in a collage does not give you the right to use other people’s art. I am proud to see this!!!

  • Any kind of appropriation without permission is a crime…I see it constantly here, and I am the victim of it all too often….but I don’t allow it and will prosecute if necessary…

    – ©Janis Zroback

  • Cindy Schnackel
    Cindy Schnackelalmost 4 years ago

    Glad this is receiving a lot of publicity because there are so many people that believe it is legal to use anything they find to make collages, etc.

  • I think it’s all right if the image is totally obscured or at least it used to be so… if you look at the mixed media books and magazines they all talk about taking photos from books and is something I have always questioned…I think it’s best to take your own photos first….

    – ©Janis Zroback

  • Ann  Warrenton
    Ann Warrentonalmost 4 years ago

    Thank you for being so diligent on this subject. I appreciate reading your information and updates. :)

  • You’re very welcome Ann…

    – ©Janis Zroback

  • Hilary Robinson
    Hilary Robinsonalmost 4 years ago

    From a slightly different angle, I had to resort to legal action to get copyright on fictional characters I invented and wrote about. As a result I am very conscious of moral rights and always ask a photographer’s permission even to use their images as reference material for a painting. Unfortunately I haven’t sold any…

  • The laws are getting better at protecting us now…I intend to prosecute anyone to the full extent of the law if they appropriate any work of mine…

    – ©Janis Zroback

    BYRONalmost 4 years ago


    I loved this argument: "established artistic practices” for justifying his actions.

    What next, he argues that theft, rape & murder are not illegal actions because they are also “established [criminal] practices”?


  • That kind of bombastic patronizing attitude just gets me so riled up…artistic practice indeed….he called the man mediocre but had no qualms about using his art…tchah….

    – ©Janis Zroback

  • Prince Images

    I am going to get some old Playboy mags, cut up the images and sell them for a million bucks…

    – ©Janis Zroback

  • Hugh Fathers
    Hugh Fathersalmost 4 years ago

    Most interesting, thank you for sharing it . . .

  • You’re welcome Hugh…

    – ©Janis Zroback

  • Hugh Fathers
    Hugh Fathersalmost 4 years ago

    I just had a quick look at the link to Richard Prince’s images . . . I’m amazed people are paying more than $1M for that . . . I have seen far, far better art here on the bubble . . .

  • I was astonished but just for a minute, as I suddenly remembered some of the art I had seen in that price range…there is one born every minute…

    – ©Janis Zroback

  • Peter Hill
    Peter Hillalmost 4 years ago

    All power to Patrick Cariou, especially as he had the intestinal fortitude to see this through to the end. When the court’s decision was first announced I edited my Journal about copyright to include a reference to it, stating:

    In that case the artist basing his work (which sold for millions) on a photographer’s work was held to have only created derivative works and thus had infringed the photographer’s copyright. Damages are yet to be determined, but they will be substantial! The artist had the temerity to argue in defense that the photographs did not have copyright susbsisting in them, because “the photos are mere compilations of facts…arranged with minimum creativity.” Fortunately the Judge in the case told the artist where to stick that defense: “Unfortunately for defendants, it has been a matter of settled law for well over 100 years that creative photographs are worthy of copyright protection.” Duh!

    Just the other day, news came through of Bill Henson’s photography being appopriated by an artist invited to contribute to Sydney’s Head On Photo Festival. The artist was quoted in the press as saying she was a “shit house photographer” and hence she used someone else’s work in a piece designed to provoke debate about censorship. Two wrongs don’t make a right.

    Thanks for posting this Janis, and thanks for the link.


  • Peter your dissertation on copyright was the most succinct and well written piece I had read in a very long time…I keep it on my desktop front and centre….

    This case made me see red on many levels…the appropriation of someone else’s work for one thing, and the junk that people get conned into buying for another…millions of dollars for something that’s done at the grade school level and less expertly at that…
    They will make any excuse for abusing the rights of others…when my work was stolen recently (for the millionth time), I was supposed to accept that it was because they found it inspiring…

    – ©Janis Zroback

  • Jim Phillips
    Jim Phillipsalmost 4 years ago

    Always like to hear when justice has been served. Thanks for posting Janis.

  • You’re welcome Jim…

    – ©Janis Zroback