AESTHETICS FOR BIRDS

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"Cariou v. Prince and Interpretive Intentionalism" by Karen Gover

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Karen Gover is a philosopher and art critic whose writing primarily concerns contemporary visual art. She has published articles in the British Journal of Aesthetics, the Journal of Aesthetics and Art Criticism, and the Journal of Aesthetic Education. These days, Gover is particularly interested in questions concerning artistic moral rights and intellectual property. She is one-half of the philosophy department at Bennington College, a tiny liberal arts college in Vermont.
 
Rightly or not, academic philosophy has a reputation for pursuing irresolvable debates about highly speculative questions, often with no material stakes or outcome.  For some, this is proof of philosophy’s futility; for others, it points to the value of dialectic not in its utility, but as a worthwhile end in itself.
 
The intentionalism debate in aesthetics could be seen as one such debate.<!–[if supportFields]>ADDIN EN.CITE Maes201015815815817Maes, HansIntention, Interpretation, and Contemporary Visual ArtBritish Journal of AestheticsBritish Journal of Aesthetics121-138.5022010<![endif]–><!–[if supportFields]><![endif]–> This is primarily a normative debate about whether, and to what extent, artists’ pronouncements about the meaning of their artworks should be determinative for the interpretation of those artworks.  While there have been some exceptions, the discussion has focused to a great extent on literary artworks (For an overview see Irvin 2006).<!–[if supportFields]> ADDIN EN.CITE Irvin200614414414417Irvin, SherriAuthors, Intentions, and Literary MeaningPhilosophy CompassPhilosophy Compass114-128122006<![endif]–><!–[if supportFields]><![endif]–>  Anti-intentionalists and extreme actual intentionalists represent the two poles of the debate.  The former divorce the meaning of the work entirely from reference to the historical author’s intentions, whereas the latter collapse them.  Neither pole has many remaining adherents.
 
For the past twenty-five years, the argument has largely coalesced around versions of two intermediate positions, often called hypothetical intentionalism (HI), and moderate actual intentionalism (AI).  While there are many nuances and variations among the proponents of these positions, two representative voices in this debate are Jerrold Levinson, a proponent of HI, and Robert Stecker, who has given nuanced defenses of AI over the years.<!–[if supportFields]> ADDIN EN.CITE Levinson19922322322325Levinson, JerroldIseminger, GaryIntention and Interpretation:  A Last LookIntention and Interpretation221-256

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1992PhiladelphiaTemple University PressStecker200616516516517Stecker, RobertModerate Actual Intentionalism DefendedJournal of Aesthetics and Art CriticismJournal of Aesthetics and Art Criticism429-4386442006Stecker20031421421426Robert SteckerInterpretation and Construction:  Art, Speech, and Law2003Malden, MABlackwell<![endif]–><!–[if supportFields]><![endif]–>  Generally speaking, hypothetical intentionalists stop short of permitting artists’ statements about work meaning to be relevant for interpretation, even as they acknowledge the necessity of referring to the intentions of the artist in determining what category the artwork belongs to.  Moderate actual intentionalists, on the other hand, do consult statements by the artist about work meaning, while recognizing—this is why they are ‘moderate’—that one must approach such statements skeptically.  As I see it, the debate is symptomatic of an ineluctable tension in our experience of artworks:  on the one hand, they are the expressions of their authors.  On the other hand, artworks are not simply reducible to the meaning that their authors intended to give them.  They are cultural artifacts.  They have lives of their own.


As Hans Maes (2010) has pointed out, the debate between proponents of HI and AI has proven surprisingly intractable and lively, even though it seemed to be drawing to a close over twenty years ago.  (Levinson published “Intention and Interpretation:  A Last Look” in 1992, and yet the debate soldiers on.)  This is so despite the fact that there are very few, if any, test cases that effectively divide supporters of AI and HI.  The question of the proper role of authorial pronouncements about work meaning has a zombie-like persistence in clawing itself back into the arena long after it has been pronounced dead.  Even Dennis Dutton, who in 1987 penned “Why Intentionalism Won’t Go Away,” probably thought it would have by now.<!–[if supportFields]> ADDIN EN.CITE Dutton19871821821825Dutton, DennisAnthony J. CascardiWhy Intentionalism Won’t Go AwayLiterature and the Question of Philosophy1987BaltimoreJohns Hopkins University Press<![endif]–><!–[if supportFields]><![endif]–> 
 
Much as I would like to, I cannot claim to have a solution to the intentionalism controversy that would end the sparring between the two sides once and for all.  But I would like to call attention to its recent, unlikely appearance in a high-profile legal case involving appropriation art and copyright law.  When the intentionalism debate shifts from the pages of scholarly essays into a courtroom where over $10 million worth of art is at stake, one wonders whether the change in context can shed light on the long-running and seemingly intractable academic dispute.
 
In 2008, the French photographer Patrick Cariou sued Richard Prince for copyright infringement over his use of the images in Cariou’s book Yes, Rasta.  The book is a collection of classical portraits that Cariou made of Rastafarians living in the Jamaican jungles.  Prince reproduced some of Cariou’s photographs in a series of thirty collages called Canal Zone, in which he pasted images of guitars in the hands of the Rastafarians, placed ovoid shapes over their eyes and mouths, and included them in collages alongside naked women in provocative poses.  He exhibited the paintings in the Gagosian gallery in New York City, yielding sales of over $10 million.
 


By contrast, Patrick Cariou’s photo book had only earned him $8,000 in royalties and was out of print.  He only sold prints of his work to friends and acquaintances, and for a nominal fee.  In other words, he was not aggressively pursuing a career as an artist, and was certainly not part of the elite group to which Prince belongs.  However, Cariou had made arrangements for a solo show of his work in a New York gallery, which the gallery owner cancelled once she learned about the Canal Zone show at Gagosian.  Christianne Celle claimed that she didn’t want to do a show of Cariou’s work if it had been “already done” and she did not want to appear to “capitalize on Prince’s success” by showing the photographer’s work.  Cariou argued that Prince’s appropriation of his work caused him to lose the show.
 
Prince countered the accusation of copyright infringement by arguing that his use of Cariou’s photographs was an instance of fair use.  The fair use statute permits the reproduction of authored works in certain cases, taking into account the nature and purpose of the use, the nature of the source material, the amount taken, and whether it usurps the market for the original source.  It limits the rights of copyright holders in order to recognize that authors sometimes need to make reference to other works in order to develop new ones.  The statute mentions works of commentary, criticism, scholarship, and news reporting as possible instances of fair use. Even parody has found protection under the doctrine.  But determinations of fair use are, by design, highly context-sensitive, and provide no clear rules, only guidelines.  This has meant that scholars, artists, and others must take what Judge Pierre Leval (1990) has called a “guess and pray” approach when navigating the line between fair use and infringement.<!–[if supportFields]>ADDIN EN.CITE Leval199038538538517Leval, Pierre N.Toward a Fair Use StandardHarvard Law ReviewHarvard Law Review1031990<![endif]–><!–[if supportFields]><![endif]–>  Indeed, Patricia Aufderheide and Peter Jaszi just issued a reportthis month claiming that the uncertainty surrounding fair use interferes with the work of scholars and visual artists.
 
Prince argued that appropriation art should be considered a per se instance of fair use because it transforms the source material into a new artwork with a different meaning from the original.  Prince has made his fame and fortune in the contemporary art world by appropriating images from the mass media, particularly magazine ads, and recontextualizing them as works of art.  His Cowboysseries, taken from ads featuring the iconic Marlboro Man, are particularly famous, and have fetched record-breaking prices at auction.
 
 
Prince was deposed by Cariou’s lawyers for seven hours.  (The transcript, which is fascinating, is reprinted in a volume edited and published by Greg Allen of the website greg.org).<!–[if supportFields]> ADDIN EN.CITE Allen201138038038028Allen, GregCanal Zone Richard Prince YES RASTA:  Selected Court Documents from Cariou v. Prince et al2011greg.org<![endif]–><!–[if supportFields]><![endif]–>  Prince was asked about his career, his artistic process, his thoughts about the theory behind appropriation art, and the intended meaning of his Canal Zone paintings.
 

Mr. Brooks[lawyer]:  Okay.  So your view is if you create a work of art—do you consider this a work of art? 

Richard Prince:  Yes, I do. 

Brooks:  If you create a work of art anyone else who wants to is free to copy it and sell it? 

Prince:  That’s the optional or the operative word you just said.  Free. 

Brooks:  Right. 

Prince:   And art is about freedom.  It’s not about being restricted.  If I was restricted then I couldn’t transform these images.

 
Appropriation art poses a particularly difficult test of the fair use doctrine because it has what we might call a formal similarity to blatant copyright infringement.  It is, after all, an act of deliberate copying.  While most everyone will readily acknowledge that there is an important difference between high-concept ‘stealing’ by artists such as Elaine Sturtevant or Richard Prince and the pirated copies of Hollywood movies and Harry Potter books on offer in marketplaces around the world, it has not been easy to translate that conceptual distinction into a fair use standard that the law can apply consistently.  Over the past two decades, the concept of “transformation” has emerged as a touchstone for appropriation art cases:  the secondary use must be seen as sufficiently transforming its source material into a new idea or expression, rather than merely usurping it.  As Darren Hick (2013)<!–[if supportFields]> ADDIN EN.CITE Hick201336836836817Hick, Darren HudsonAppropriation and TransformationFordham Intellectual Property Media & Entertainment Law JournalFordham Intellectual Property Media & Entertainment Law Journal101-140232013<![endif]–><!–[if supportFields]><![endif]–> has shown, however, this has not solved the problem of appropriation art’s uncertain legal status.  There is no consensus around what counts as a transformative work and how that ought to be determined.
 
For example, Jeff Koons failed to convince the court that his sculpture String of Puppies, based on a photograph by Art Rogers, transformed Rogers’ image into a parody.  A decade later, however, he prevailed in a lawsuit filed by Andrea Blanch for his use of a photo that she had taken for a Gucci sandals advertisement.  He persuaded the court that his painting, Niagara, while not a commentary on Blanch’s photo per se, was using the photo to comment on the banality of consumer culture generally.  Koon’s explanation of the meaning of Niagara carried a great deal of weight in the court’s decision.
 
One of the problems this raises, however, is whether anyone charged with copyright infringement can get away with it by explaining that they intended to transform the source material.  In the some instances of appropriation art, there may be no visual difference between the source and the secondary use, and so it will be purely a matter of interpretation.  Copyright suits involving appropriation art come down to the question of how to interpret such works of art, and whether the secondary use is different enough from its source that it counts as a new and valuable contribution.  This leaves judges in the awkward position of art critic, and may put artists at the mercy of the judge’s predisposition toward their art.
 
We can see the intentionalism debate play itself out rather neatly in the two opposing outcomes to the Cariou v. Princecase.  The district court relied heavily on Prince’s testimony about his work.  But even though, as we see in the quote above, he claimed to “transform” Cariou’s images, Prince’s use of this shibboleth was not enough to clinch his case.  Prince also told the court that his work “doesn’t really have a message” and that he was “not trying to create anything with a new meaning or a new message.”  These statements were mentioned in the district court’s ruling that the Canal Zone paintings were an infringement of Cariou’s copyright.  Applying the standard of “transformative commentary,” in which the secondary use must comment on and transform the source material, the court found that Prince’s works failed on both counts.  It said that the core message of Cariou’s photographs was retained in Prince’s paintings, and that Prince’s aim, like Cariou’s, was “a desire to communicate to the viewer core truths about Rastafarians and their culture.”  Even more importantly, however, the court found that “Prince did not intend to comment on Cariou, on Cariou’s Photos, or on aspects of popular culture closely associated with Cariou or the Photos when he appropriated the Photos,” and so it concluded that Prince’s use was not fair.  Note that the court’s interpretation of Prince’s work is explicitly tied to an understanding of the artist’s actual intentions.
 
We might wonder about the seeming contradiction between these two judgments:  on the one hand, the court found that in his Canal Zone paintings Prince was attempting to “communicate core truths about Rastafarians” and at the same time it took him at his word when he claimed that they did not really have a message.  It would seem that, strictly speaking, a work of art could not simultaneously have no message and be about core truths concerning Rastafarians.  (One wonders what, exactly, ‘core truths about Rastafarians’ could be, but that is a different matter).  The court took this to mean that without a new message of his own, either about Rastafarians or about Cariou’s photos of them, Prince was simply copying Cariou’s work and therefore violating his copyright.  Judge Deborah Batts ordered Prince to deliver the illegal paintings and their publicity material to Cariou to dispose of as he wished. 
 
The artworld took this as a blow not only against Richard Prince, but against appropriation art generally.  In 2013, however, the decision was mostly reversed by the appellate court.  It ruled that twenty-five of the thirty Canal Zone paintings were in fact instances of fair use.  It remanded the other five paintings back to the district court for judgment using a different standard than “transformative commentary.”  What is interesting about this reversal is that the appellate court not only rejected the district’s decision, but it pointedly rejected its use of the artist’s testimony as evidence, instead giving primacy to the viewer’s aesthetic judgment:
 
What 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.
 
The courts did not use the language or conceptual apparatus of the intentionalism debate; nevertheless, they recapitulated it through their opposing positions on the status of Prince’s artworks and the role that his testimony had in determining that status.  The district court relied heavily on Prince’s statements about the meaning of his paintings and his reasons for using Cariou’s photographs, and it used those statements against him.  Of course, the motivation for its reliance on Prince’s testimony about the meaning of his own work may have been opportunistic rather than principled:  by playing the role of a self-abnegating Cordelia to the court’s Lear, Prince made it easier for the court to find that his paintings were not transformative.  If he wanted to, he probably could have told a more convincing story about how, exactly, his Canal Zone series effectively transformed the material taken from Cariou.
 
For its part, the appellate court took what could be seen as a principled stand against actual intentionalism, in favor of a hypothetical intentionalist approach to Prince’s paintings.  It accorded interpretive authority to the “reasonable observer,” not the artist, and it found that there were obvious aesthetic differences between the Canal Zone paintings and the Yes, Rasta photographs which did make Prince’s use transformative.  Whereas Cariou’s photos were “serene and deliberately composed,” it found Prince’s paintings “crude and jarring,” which showed (at least in twenty-five of them) that the paintings “manifest an entirely different aesthetic” from the borrowed material.  The court found that these aesthetic differences were not merely cosmetic, but that they signified a transformation of Cariou’s images into new works with new meanings.  Moreover, it rejected the district court’s requirement that the appropriation be a commentary aimed either at the source or at popular culture in general.
 
However, while the appellate court’s ruling is a legal victory for Richard Prince, it is premature to label this as a win for appropriation art in general.  The appellate court’s decision was based on the judgment of a hypothetical “reasonable observer” of the work.  The transformative character of Prince’s paintings was based on the degree to which they were visibly different from Cariou’s original images, upon which the expressive differences supervened.  Thus it did little to set a guideline for how appropriation art per se might be protected by the fair use provision, since in its purest or most extreme instances, works of appropriation art are visually indistinguishable from their source material.  Indeed, the most radical premise of appropriation art is that the meaning of a work is not borne on its face, but is determined by that which, as Arthur Danto so famously declared when discussing Warhol’s facsimile Brillo Boxes, “the eye cannot descry”:  its context.  As Hick (2013) observes,
 

when the court reduces the question of transformation to how the work would appear to a “reasonable observer,” it fails to ask whether this observer is a member of Prince’s audience, or of Cariou’s, both, or neither.  Even where the original and the secondary work appear visually indistinguishable, the audience familiar with the aims and practices of appropriation art will treat them very differently, and in many cases, they are likely to find something new—a new meaning, a fundamentally different aesthetic.  And much of this will turn precisely on what the artist says about his work.

 
The conflicting decisions of the courts in the Cariou v. Prince case show that the question of how much authority to accord authors over the meaning of their artworks remains an open, unresolved problem.  As I have argued elsewhere (Gover 2012), this question becomes particularly pointed in the case of contemporary visual art because such works are not linguistic utterances in the same way that literary works are.<!–[if supportFields]>ADDIN EN.CITE Gover201236536536517Gover, KarenWhat is Humpty Dumptyism in Contemporary Visual Art? A Reply to Maes.British Journal of AestheticsBritish Journal of Aesthetics5222012<![endif]–><!–[if supportFields]><![endif]–>  
 
While the appeal to a “reasonable observer” worked in Prince’s favor this time, it is easy to imagine how this device could be used to mask judicial bias when it comes to subjective aesthetic judgments.  For this reason, some legal scholars have suggested that the courts should rely on experts on aesthetic theory, rather than risk allowing cognitive bias to color their judgment (McKenzie 2013).<!–[if supportFields]>ADDIN EN.CITE McKenzie201338138138117McKenzie, LizDrawing Lines:  Addressing Cognitive Bias in Art Appropriation CasesUCLA Entertainment Law ReviewUCLA Entertainment Law Review83-1052013<![endif]–><!–[if supportFields]><![endif]–>  As Christine Farley (2013) puts it:
 

There is no excuse for courts to act as if questions of artistic value and classification have not already been theorized.  It is time for these courts to begin to take advantage of that work.  The law here should be better theoretically informed.  Engagement in aesthetic discourse would reduce the mismatch of legal and artistic developments.

 
Pace Barnett Newman, perhaps birds need ornithologists after all!  While the idea that courts might make use of philosophers’ expertise on such matters is gratifying, I do not share Farley’s optimism that it would reduce the uncertainty surrounding the status of appropriation art vis-a-vis fair use.  After all, philosophers are known for their spirited disagreements with one another, as we see in the intentionalism debate.  There is no reason to assume that the use of philosophers or art critics as expert witnesses will yield a consistent standard of judgment.  Furthermore, one can be well versed in the historical and theoretical foundations of appropriation as an artistic trope—and very sympathetic to it—and yet find that some artists’ attempts at meaningful appropriation fail to hit the mark.  (An example of one such case in my opinion can be found here.)  It is not as though philosophers are uniquely able to see the otherwise invisible line that marks the point where an act of infringement is transfigured into an artwork with new meaning.  In a way, it is absurd to expect one, since the very point of appropriation art, as many theorists have articulated, is precisely to challenge the dichotomy between original and derivative works.<!–[if supportFields]>ADDIN EN.CITE Carlin198836936936917Carlin, JohnCulture Vultures:  Artistic Appropriation and Intellectual Property LawColumbia VLA Journal of Law and the ArtsColumbia VLA Journal of Law and the Arts103-143131988<![endif]–><!–[if supportFields]><![endif]–>  And yet such a line is essentially what the law would need in order for fair use cases to be adjudicated consistently.
 
As for the use of artists’ testimony in such cases, I think it is inappropriate to treat their statements about the meaning of their work as dispositive. Prince’s straightforward, unapologetic demeanor during his deposition makes for a fascinating portrait of the artist and his ideas.  It also contained conflicting statements about the intended message behind the Canal Zone paintings, a point that the prosecution tried to use to its advantage.  But why should the artist have a coherent, consistent story about the meaning of his work that he can produce on demand?  Under copyright law, the authored work is the expression of an idea, and copyright protects the expressions, not the ideas.  To demand that an artist then explain his expression in a way that will satisfy a court of law (as opposed to an artist’s statement published in a catalogue essay or press release) is unreasonable. It not only expects artists to have a logically consistent message behind their work, it requires them to articulate verbally what they have already expressed visually—something that may be an impossible task.  This is not to say that Richard Prince is incapable of speaking clearly about his own work—far from it.  My point, rather, is that if an artist is in the business of trying to make compelling images, which s/he may do for any number of reasons, their primary focus may not be in communicating “core truths” that can then be translated into a coherent set of propositions.  Let me finish by letting the artist speak for himself on the matter:
 

Brooks:  Do you agree that you’ve redefined the concept of authorship? 

Prince:  I would hope that I’ve had some hand in redefining the issues that have to do with authorship. 

Brooks:  How so? 

Prince:  It has to do with that concept that people really believe artists are special and they have something special to say.  There was a time in the late ‘70s when I didn’t go along with that concept.  And there was that essay by Roland Barthes called Death of an Author, and it was just an issue that was going around town.  And I think that I got caught up in it and I got involved in it and I sort of decided to do something about it in my own particular little way.  And hopefully, yes, I hope that—you know, I would have called it the death of the ego, but I guess authorship is a fairly accurate and it’s an okay word.  I mean it’s very—all it is is philosophical.  And, you know, it’s sort of like someone writing a term paper, you know, it’s academic.  You know, it’s something that takes place in October Magazine, which I don’t particularly like and Columbia University and you know, it’s—I’m much more of a –well, I’m much more interested in trying to make art that stands up next to Picasso, De Kooning, and Warhol.  That’s what I’m interested in.

 
 
<!–[if supportFields]> ADDIN EN.REFLIST <![endif]–>Works Cited
 
 

One thought on “"Cariou v. Prince and Interpretive Intentionalism" by Karen Gover

  1. Ahh… Richard Prince. Between him, Sherrie Levine, and Shia Labeouf, I doubt I'll ever run out of case studies.

    Thanks for this excellent article, Karen–folding the problem of interpretation into appropriation art is something that's always been in the back of my mind (and especially because of Sherri Irvin's tackling of the matter in “Appropriation and Authorship in Contemporary Art” (2005)), but which I’ve so far refrained from wading into. And you lay out the problem quite nicely.

    I agree with you about the issue you lay out of bringing in philosophers as expert witnesses to testify in copyright cases. As much as I eagerly await such a call, I think there’s a deeper problem here.

    As I argued in my “Toward an Ontology of Authored Works” (2011), the authored work (i.e. the expression, the thing protected by copyright) is not, ontologically speaking, the artwork. Rather, these are ontologically-overlapping but distinct categories. Generally speaking, the ontology underlying copyright law is a strongly formalist one (though not to the extent of, say, Goodman’s view). And, as you suggest here, the case for artworks is probably not so straightforward.

    I think it would be reasonable, however, to see the fair use doctrine as an attempt to make room for artistic (and other) sensibilities in a field that is—strictly speaking—not an artistic domain, but a legal one. And this is where things are bound to get dicey. There’s a longstanding position in US copyright law that judges should not be expected to be art experts, and so long as the law is able to treat authored works AS authored works, this is reasonable enough. But if it’s right that fair use represents an overlapping territory, then this may be a position that the courts have to bend on.

    Like

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