Transcript: Picture Perfect Fair Use?

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Interview with Christopher Jon Sprigman

For podcast release Monday, July 20, 2015

KENNEALLY: When is a photograph not a photograph? When it is a work of art by Richard Prince, a master of rephotography and other appropriation practices. Welcome to Copyright Clearance Center’s podcast series. I’m Christopher Kenneally for “Beyond the Book.” Riddles that puzzle over ownership and originality have preoccupied Richard Prince for four decades. Those same riddles, as expressed in his paintings and photographs, have also made Prince an enormously well regarded figure in the Manhattan art world and a fabulously wealthy man.

He is no stranger either to controversy or courthouses, where he has faced charges of copyright infringement. In May, at New York’s Frieze Art Fair, Prince exhibited copies of other people’s Instagram posts – a mix of images from celebrities and ordinary people to which he added a cryptic comment at the bottom. These rephotographs – actually, reprints, for they were made with an inkjet printer – reportedly sold for $90,000 apiece.

Professor Christopher Jon Sprigman asserts that Prince’s body of appropriation art is provoking a reassessment of the meaning of authorship at a time when ownership of creative works in our digital world is tenuous. Chris Sprigman joins me now from his New York University School of Law office, where he is a co-director of NYU’s Engelberg Center on Innovation Law and Policy. Chris Sprigman, welcome to “Beyond the Book.”

SPRIGMAN: Thanks for having me.

KENNEALLY: We’re delighted to have an opportunity to speak with you. An essay you wrote for Bloomberg Business caught our eye and really kind of worked through some of the important questions at the heart of this man’s career, but particularly at the heart of what was a hot news story at the time. Tell us a little bit more about what it was that so inflamed some people. Commentators were insisting that this was all just a rip-off.

SPRIGMAN: Yeah. So what Richard Prince did in this instance was he took, as you said, a bunch of people’s Instagrams – so a mix of celebrities and ordinary people – and he reprinted them. He blew them up, printed them out on an inkjet printer. Before doing so, he added a cryptic comment to the bottom of each.

He took these Instagrams, which were worth pretty much zero when he copied them, and he posted them in his Gagosian display. He’s sponsored by the Gagosian Gallery, one of the most powerful galleries in the world. They posted these at the Frieze Art Fair, they displayed them, and reportedly they were sold for about $90,000 apiece. So a lot of people thought, well, he takes Internet postings on Instagram, and he profits from them. People’s reaction was (a) that’s unfair, and (b) that’s a copyright violation. That’s where the conversation began.

KENNEALLY: Right. But this is a conversation that we’ve held at least once before with Richard Prince, because he was sued over copyright infringement about five years ago by a photographer, Patrick Cariou.

SPRIGMAN: Yeah, that’s right. Patrick Cariou had taken at least what I consider some quite beautiful and classical photographs of Rastafarians in Jamaica. Richard Prince had run across these. Something about them attracted him. And he took these, and he used them as the basis for a series of works – paintings, collages – that Richard Prince called Canal Zone.

These were works that did various things to Cariou’s photographs – ripped them into pieces and used them as basis for collage. In some instances, used them more wholesale, covering eyes and mouths with these blue splotches of paint he calls lozenges. Cutting in, for example, a guitar into one picture of a Rastafarian. But using them in a way that a court held – the Second Circuit held transformed them into something new.

KENNEALLY: The notion of transformative is at the heart of the whole argument of whether something is a fair use or not.

SPRIGMAN: It’s moved to the heart of that argument. The Second Circuit, over the last decade or so, has increasingly been responsive to this idea of transformativeness, saying that what the copyright law is aiming to provoke is new works. If someone takes preexisting works and transforms them in an important way – either the meaning of that work, the message of that work, or the use of that work in an important way – then that transformative use is much more likely to be a fair use.

So Richard Prince takes these Cariou photographs. He transforms them from kind of classical portraiture into conceptual art. The audience for these two works of art is very different. There’s no sense, the Second Circuit says, in which Prince’s use interferes with Cariou’s market. Cariou does not have a right to control derivative works that are transformative. Therefore, Prince’s use is a fair use.

That was a very important Second Circuit holding. People are divided on it. But it is still, I think, at the heart of the debate that we’re having today about the Frieze Instagrams.

KENNEALLY: Right. It’s interesting, Chris Sprigman, that this is an argument that’s not – well, it may be new to copyright law, but it’s not new to the art world. As you point out in your essay, these kinds of notions of literally standing ideas about what is art on its head go back at least a century.

SPRIGMAN: Yeah. If you think back to the beginning of the 20th century, you see great artists, like Marcel Duchamp, playing with some of the same issues. So Marcel Duchamp famously takes a urinal, turns it on its side, signs it – not with his name, but with the pseudonym R.Mutt – dates it, and it becomes a work of art – Fountain.

What is Duchamp saying? So what Duchamp is saying is for years – for centuries, really – we’ve had this kind of academic conception of what art is. We’ve had a set of criteria for what is and what isn’t art that we’ve developed in the art world, formal criteria – beauty or form or audience observation or appreciation. All these things, Duchamp is saying, we’re going to throw out the window. What art is is what the artist says it is. Art is an act of authority, not an act of aesthetic content. That’s a very important moment in art.

What’s interesting always to me about this is Duchamp is, in a sense, a radical. He’s saying that art is an act of authority. At about the same time, the fascists in Germany are saying that art isn’t an act of authority. Art is actually a set of formal aesthetic criteria. If you think about Nazi art, which is generally very bad art, it’s very bad art because at the time that – a little bit after the time that Duchamp is destroying the notion of formal aesthetic criteria, the Nazis are attempting to re-impose it. That’s kind of screwy, if you think about it. It’s precisely the opposite of what you would expect. But some of these same interventions that conceptual art makes about what is and what isn’t art Richard Prince is making today.

KENNEALLY: Indeed. The reaction that you cite there with regard to fascist art – these kinds of conceptual artists, that’s what they’re about very often. They want to provoke. They want to sort of encourage a reaction – as strong as they can make it. Perhaps the stronger the reaction, the more pleased they are with this. Prince himself, though, has kept pretty much mum about all of this. He just goes about his business and has been doing all of this not since yesterday, but for over four decades.

SPRIGMAN: Yeah, so Duchamp wrote quite exhaustively and incisively about what he was doing. Prince is much more reserved on this. He says stuff, but the stuff he says is extremely elliptical. But I think back to something Prince did a couple of decades ago, when he took cigarette ads featuring the famous, the iconic Marlboro Man, and he repurposed them as art. He essentially took pieces of advertisements featuring the Marlboro Man, and he made art out of them and called it this Cowboy series.

What is that about? What it’s about is, in a sense, unclear, because there’s no authoritative statement of what it’s about. In a sense, I think Richard Prince would disclaim the idea that he is in a position to give an authoritative statement, because some of what he’s saying is that the concept of authorship is maybe overblown, maybe tenuous.

But when I see those photographs – the Cowboys photographs – what I think is, well, who made the Marlboro Man? To some degree, Philip Morris made it. It’s a marketing concept that Philip Morris exploited. But in a sense, America made it, because the entire lore of the Old West, the figure of the lone cowboy, that is very much something that’s been swimming around in our culture forever. So what right does Philip Morris have to appropriate this piece of our culture and then claim exclusive rights in it?

I’m not sure that Richard Prince is thinking quite in the same lawyerly terms that I’ve just laid it out. But what he does with the Marlboro Man certainly raises those questions for me and, I think, for a lot of other people. That’s why I think Richard Prince is an extremely interesting artist to law professors or lawyers.

KENNEALLY: Yeah, and with regard to the cowboy, at least, you’re saying, I think, Chris Sprigman, that nobody owns the cowboy and everybody does. I wonder whether that is a rule of thumb for art or creative expression on the Internet as well.

SPRIGMAN: I think what’s interesting about the Frieze Instagrams is you can make an argument that isn’t the same, but it’s analogous. I’m thinking about some of the Frieze Instagrams that are put out by people who are self-promoting. There’s a woman named Doe Deere, who is the impresario behind a cosmetics company. One of the more notable Frieze Instagrams was a picture of her with blue hair, holding a doll that looks exactly like her and also has blue hair. It’s this kind of twee self-promotion, which you see a lot of on Instagram. So she puts this out there, and Richard Prince takes it. And to her credit, she doesn’t really complain about it. She kind of notes it and moves on, which I think most people have done.

But I think what Richard Prince is saying – at least what I find in the work – again, what he’s saying is unclear because he sort of disclaims the idea that he’s really saying anything. I have a story about that that I think is kind of amazing, so I’ll tell you in a moment. But what I take him as saying is here’s this kind of public conversation that’s going on. People are engaging in this public conversation for a mix of reasons. Someone like Doe Deere is engaging in it for self-promotion.

I am subject to this, right? I, Richard Prince – I am on Instagram, I am on Twitter – I’m subject to these assertions of people’s selves into the Twittersphere, into the Instagram world. But I’m going to take this, and I’m going to do something with it as well. You don’t just thrust it at me. I can use it. I can parry. I can comment on it. I can use it for my own ends. Right? This isn’t just about you making your story. This is about me as well.

I think that actually raises some issues about what rights do we have, as consumers, in a world where images and marketing concepts are thrust at us with this incredible force, and almost inescapably, right? Even when you get in a taxicab now, it’s thrust at you. What right do we have to make some use of that rather than simply being the object of it?

KENNEALLY: Exactly. Rather than be the object, you want to at least respond to it – be the subject. The response is not only to whatever the creative expression may be, if we want to elevate Instagram to art, but it is also a response to the technology, to the times, to social customs.

SPRIGMAN: Yeah, that’s right. Part of, I think, what makes people mad about Richard Prince is that Richard Prince isn’t laying out arguments for what he’s doing the way I’m laying out arguments. People are conditioned to respond to arguments laid out in words. They’re not really conditioned to think about arguments laid out in the form of art.

I had an interesting interaction with Richard Prince after this all blew up. So the thing that I wrote in Bloomberg got posted on Twitter, and he reacted to it. He said something that I thought was really interesting and shows you what kind of person he is. He wrote to me saying that he agreed with my perspective, and he thought that artists should be left alone to send out a signal like, he said, the Coke bottle in On the Beach.

Now, that reference – it’s funny. He directed that reference at me. My dad was a big Nevil Shute fan. Nevil Shute is the writer who wrote On the Beach, so I read all those books when I was a kid. What he’s referring to – the Coke bottle in On the Beach – On the Beach is a book about a nuclear war. It’s wiped out everybody on earth, except the people in Australia, who are going to be wiped out by the nuclear fallout. The book is about the last days of human life in Australia and how crazy everybody goes.

One subplot in the book is that there’s some strange radio signal coming from San Diego. The Australians dispatch a submarine to go figure out what it is. So the submarine reaches San Diego. Someone goes ashore in a radiation suit. It turns out that the signal is being sent by a Coke bottle that is leaning on a windowsill. The ocean breeze is coming in through the open window. It’s tilting the Coke bottle. The Coke bottle is tilting against a Morse code key that’s also on the windowsill and sending out this kind of random signal.

So what he says to me when he wrote to me was artists should be left alone to send out signals – these random signals like from this Coke bottle. It’s simultaneously a message and it’s also kind of infuriating, right? He disclaims any intent to send any meaningful signal. He’s just sending a signal.

KENNEALLY: Right. To that point and to the conclusion of your essay, you really reflect on the role Prince has in all of this. You say that blaming Prince – sort of accusing him of copyright infringement or stealing work – is shooting the messenger. The most important reason for considering all of this is far beyond – or the more important reasons for considering all of this are far beyond simply concerns about copyright law.

SPRIGMAN: Yeah. I’ll just give you one big example of what I’m talking about. When I was a kid, which was distressingly long ago, the dominant medium was television. What was television? It was a small number of people – people in control of television stations and programmers – talking to everybody. It was broadcast. The Internet’s not like that. The Internet is not broadcast. The Internet is interactive. We are all readers on the Internet. We’re also, many of us, authors on the Internet – many more than in the broadcast model of television. We have access not simply to consuming. We have access to producing.

A lot of the way we produce on the Internet is by commenting on, reusing, transforming the works of others. Think of people who blog. They take stuff in the news, or they take stuff they find on the Web, and they comment on it. To some degree, they transform it. Or think of the people who post mash-ups on YouTube. They’re doing the same thing. Right?

Sometimes we copy literally. Sometimes we copy in pieces. But the point is that copying is much more at the center of the way people communicate on the Internet now than it was back when we were communicated to using television. That’s just reality. Technology has made it that way. I’m not making a point about whether that’s good or bad. It just is. What Richard Prince is raising, I think, are some questions about authorship – about who’s responsible for communication, who owns communication in a world where that’s getting increasingly mixed up.

KENNEALLY: Yeah. Communication is copying. I really find that a very thoughtful notion. I’m going to take that back to my desk here at Copyright Clearance Center and think about it, because copying – sharing is another way to put that – really is, as you say, the dominant form of communication today.

SPRIGMAN: Right. And again, for the moment, I don’t really want to put a moral valence on it. There are some people who think that that is the end of Western civilization, and there are some people who celebrate it. I think it’s something in the middle. I think that a lot of copying actually leads to productive uses.

I wrote a whole book with Kal Raustiala at UCLA called The Knockoff Economy, where we look at areas of the creative economy – areas like the fashion industry or creative cuisine – or indeed the financial services industry, to a large part – where there’s lots and lots of copying. This copying can be very productive.

I’m not saying that all copying is productive. For example, the one-to-one copying of people’s songs on peer-to-peer networks – I don’t think that’s particularly productive, although I will note it has not destroyed music. Even as it’s hurt the recorded music companies, music is thriving. But there are some instances of copying that are quite productive. I think again, in the world we live in now, which is very different than the world of the 1976 Copyright Act, that’s just a fact. And Richard Prince, his work – whether he means to do this or not, he’s opening up this conversation.

KENNEALLY: Right. Finally, Chris Sprigman, copying is not necessarily counterfeiting, or is there a distinction?

SPRIGMAN: There is a distinction. Think about, for example, fashion, which is a great way, I think, to think about the distinction. Every year, there are lots of clothes that look alike. There are designers copying the designs of others. This is productive, because this is how we make trends, right? We know that a design is on trend, we know it’s in fashion, when it’s copied and people buy in to the trend. That’s actually good for the industry. Trends help sell fashion. And then, once the copying proceeds too far, it kills the trend and births another one. So the whole fashion cycle is dependent on copying.

On the other hand, counterfeiting is different. So counterfeiting is when a company not simply copies the appearance of a design but possibly copies the trademark in a way that could fool consumers about the source of products. That’s a species of fraud. That can be quite destructive, actually. We enforce trademark rights in fashion goods even though we don’t, for the most part, enforce rights in the designs.

So we distinguish between copying and counterfeiting in fashion. We don’t distinguish between copying and counterfeiting pretty much anywhere else. Maybe we should. I think that’s pretty far afield from Richard Prince, but that’s where I go pretty quickly after I start thinking about Prince’s work.

KENNEALLY: I start thinking about it, and I go in all directions as well, but I’ve enjoyed chatting with you about several of those directions. Christopher Jon Sprigman is professor of law at the New York University School of Law and co-director of NYU’s Engelberg Center on Innovation Law and Policy. He’s also the coauthor of The Knockoff Economy: How Imitation Sparks Innovation, which he wrote with Kal Raustiala of the UCLA School of Law. Chris Sprigman, thanks so much for joining us on “Beyond the Book.”

SPRIGMAN: It’s been a pleasure. Thank you.

KENNEALLY: “Beyond the Book” is produced by Copyright Clearance Center, a global rights-broker for the world’s most sought-after materials, including millions of books and e-books, journals, newspapers, magazines, and blogs, as well as images, movies, and television shows. You can follow “Beyond the Book” on Twitter, find us on Facebook, and subscribe to the free podcast series on iTunes or at our website,

Our engineer and co-producer is Jeremy Brieske of Burst Marketing. My name is Christopher Kenneally. For all of us at Copyright Clearance Center, thanks for listening to “Beyond the Book.”

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