Monday, March 4, 2024

Judicial Activism and the Return of Formalism in the Cariou v. Prince Decision

The Cariou v. Prince decision was handed down last Thursday. I have struggled with what to write primarily because I have been shocked into a catatonic state. How two intelligent minds could draft such an epic disaster is beyond any form of comprehension.

One would hope that after eleven months of deliberation and critical analysis we would have been given something more than 23 pages of judicial poetry. Am I enraged? No. I would be had the opinion been written by the cast of 30 Rock. Am I disappointed? No. I would have had the 2nd Circuit remanded all 30 works to the District Court and Judge Batts had concluded that all 30 works were fair use applying the correct procedural and judicial standard. Put simply, I am numb. I am speechless as to what this says about judicial review, and I am disheartened about what this will promote in cultural production.

As many of you know I founded The Art & Law Program in 2010, a weekly seminar series with a focus on introducing artists to law and jurisprudence (among which are reasoned thought and analysis by intellectuals such as Oliver Wendell Holmes, Felix Frankfurter, Learned Hand, Richard Posner, Antonin Scalia, Akil Rheed Amar, Alexander Meikeljohn and Eugene Volokh).

I use the writings by thinkers like those listed above in The Art & Law Program as sources to expand and strengthen artistic thought and intent, and by definition, cultural production. It was also my hope that I could point to legal opinions written by state or federal judges as specimens of well-reasoned arguments and legal principles. In a nutshell, to a better understanding of the construction of democracy.

Unfortunately, opinions like Kelley v. Chicago Park District (both the district court’s and 7th Circuit’s), Judge Ponsor’s Mass MoCA v. Buchel opinion, and now Parker and Hall’s 2nd Circuit Cariou v. Prince opinion leave me in a quandary. If the sources one was faithfully referencing prove to be discombobulated, what is one to do?

With this question in mind, I will try to tease out what I see as problematic in the Cariou v. Prince 2nd Circuit opinion, which I break down into artistic and legal aspects. These two aspects are not necessarily exclusive of each other.

I. Law: “The majority … employ[s] its own artistic judgment.”

The dissenting judge, Clifford Wallace, rightly argues that “after correcting an erroneous legal standard employed by the district court (ie- Judge Batts), we would remand for reconsideration.” However, he goes on to note, “the majority short-circuits this time-tested search for a just result under the law.” [italics added]

That’s the part the pro-Prince groupies don’t want to hear. And I probably wouldn’t either if the referees in a basketball game added time to the game-clock so as to allow my favorite team to win. Alfred Steiner, commenting for Donn Zaretsky’s blog, believes that by engaging in judicial activism the 2nd Circuit did the right thing because otherwise they would have made a “judicially conservative move.” If correct is correct, who cares if it’s “conservative”? I do remind Mr. Steiner of Supreme Court Justice Antonin Scalia’s quoting of Robert F. Kennedy, “Some men see things as they are and ask why. Others dream things that never were and ask why not?’; that outlook has become a far too common and destructive approach to interpreting the law.”

To be clear, Judge Wallace is not only judicially correct but also humbly honest when he admits that he is “not an art critic or expert,” and thus fails “to see how the majority in its appellate role can ‘confidently’ draw a distinction between the twenty-five works that it has identified as constituting fair use and the five works that do not readily lend themselves to a fair use determination.”

I agree with Judge Wallace in three regards.

One, the 30 works should have been sent back to Judge Batts for reconsideration under the 2nd Circuit’s “new” legal analysis.

Two, I would not mindlessly dispose of Prince’s statements in reviewing the 30 works under fair use. Prince’s intent is crucial to the understanding of the first fair use factor, and more so, to the “progress” of art.

And three, I agree that Judge Parker and Hall seem to take this opportunity to prove to the art world that they too are contemporary art savvy. I would like to remind them that this is not their job. If they would like to write and comment on contemporary art, there are ample avenues where they may do so, such as the Village Voice, Art in America, and The Art Newspaper.

As a segway into the artistic issues, one other thought came to mind, and one that is echoed by Bob Clarida. What does this latest fair use ruling do to the earlier Pictures Generation (the group that Howard Singerman describes as saying “I wish I had done that” or “I wish that was mine”) work like that of Sherrie Levine, David Salle, James Welling and, yes, Richard Prince? If the new standard is that:

1. Two works be put side-by-side;

2. That the physical changes be perceived by a “reasonable observer”;

3. The works cannot be “similar in key aesthetic ways” (see p.21 of opinion), and;

4. “Relatively minimal alterations” may not be fair use (p. 22 of opinion).

Now imagine a Levine or Prince, where there is no physical aesthetic change whatsoever, where artistic intent is irrelevant, and where the works are identical in key aesthetic ways. The only imaginable “changes” to a “reasonable observer” should be the rephotographing and the cropping (in Prince’s case). But do these “relatively minimal alterations” constitute a significant aesthetic change? What reasonable observer could rationally say, “yes.” Under the Cariou standard, and without the artist’s testimony, Prince’s image below infringes the copyright holder’s work. Irony, here, is an understatement.

What We Say Is What We Say

One other aspect worthy of mention is the language used by the two judges in their opinion. The Court’s fascination with size (e.g.- “measuring approximately,” ” several times that size,” “ten times as large,” “Prince’s collages…measure between ten and nearly a hundred times the size of the photographs.”) would have one think we were reading a narration of what transpires in a boy’s high-school gym.

They’re keen on class distinctions (e.g.- how much Cariou’s and Prince’s work sells for, and to which collector base) and Cariou’s market, “Cariou…has earned just over $8,000 in royalties,” and he “has sold four prints from the book, and only to personal acquaintances.” Prince’s work appeals to a “different sort of collector” (of what ‘sort’ the Court does not elaborate). It is odd that to this artistically savvy Court, the notion that an artist may value art for a different purpose than simply filling the halls of Sotheby’s and Christie’s is out of the realm of possibility.

And, of course, the Court’s exoticization of Cariou’s subject matter, noting how Cariou’s works “depict the natural beauty of Rastafarians and their surrounding environs[.]” (Note to self, send Parker and Hall Edward Said’s “Orientalism” and Gayatri Spivak’s “In Other Worlds.”) Has the 2nd Circuit been reading too much international art English?

II. Art: “In Rauschenberg, image was equivalent to paint smear.”

A glaring aspect of this fair use opinion is how it relies on the tropes and hegemony of formalism. Again, I agree with Bob Clarida that the 2nd Circuit, by removing the artist’s testimony — what I call, artistic intent — in fact obliterates conceptual art processes in favor of formalist idiocy. Clarida, “So overall, I think the decision sort of de-conceptualizes the art and treats it as merely a bunch of marks on a surface — very old-timey and reductionist.”


This same point was teased out by the late Mike Kelley, commenting on Pop Artists, who we know were in love with simply playing with images. Kelley,

One thing I didn’t like about Rauschenberg, and Pop Art in general, was that subject matter was of so little importance. In Rauschenberg’s work I always felt that any other image could be substituted for another and that there was little attention paid to the tension between the various images, the images and the paint handling, or to the possibilities of associational ties between the images. In Rauschenberg, image was equivalent to paint smear. (see p. 107, Mike Kelley, Exhibition Catalogue, Museum of Contemporary Art Barcelona.)

I am not against appropriation practices. I am, however, on par with Kelley in simply asking that the act of appropriation — like the act of judicial writing — be accompanied by some thought process. For example, note Kelley’s use of two pre-existing forms to create a similar yet more conceptually and artistically rigorous artwork.

City entry sign, Eagle Rock, California

City graffiti removal, Highland Park, California

The city sign and graffiti removal images were used by Kelley to create a sculptural art work, below.

Entry Way (Genealogical Chart), 1995

To say that Kelley was an avid proponent of artistic intent is an understatement. Kelley was notorious for his sharp thought process and his keen deliberation on the specifics of the color, size, material, and image used in any of his art works. The project above, part of a larger installation, references his relationship to the construction of institutions, childhood memory, architecture, space, and the nature of signs.

If in fact Prince’s intent and testimony do not matter, then we can soundly agree that he is just splattering paint. This might be fine if you’re an avid follower of romanticism and abstract expressionism, but if you believe, as the 2nd Circuit does, that the purpose of copyright is to “promote the Progress of…useful Arts,” then the question is clear: how does playing with paint promote the progress of art? Please note that I am not thinking about grade school or convalescent home art classes. I am talking about contemporary art.

Art vs. Craft

And what do we do with the Court’s dismissal and lack of understanding regarding the history of photography? This is a topic in and of itself, and for another day, but for now one can certainly understand their lack of knowledge of photography, the now nonexistent distinction between fine art and documentary photography, and the erasure of the fine art (men) and craft (women) dichotomy. But what is more shocking is how the so-called art intelligentsia willingly buys into the Court’s argument and by default, perpetuates these perverse ideologies. Prince is the artist; the other guy is just a photographer. Or, as a friend of mine put it, “The artist won!”

True dissent needs no first amendment protection

Art & law wise, the outcome of this decision is ironic and banal. Prince’s works previously ran afoul of the law, they infringed property rights and, in the case of Prince’s art collectors, called into question what they actually owned and what they could actually do with the artwork. They were lawless.

Now that 25 works have been “found” to be fair use, what does this do to Prince’s “outlaw” posture? Simply put, they have been domesticated. The art works are now artworks. They have been blessed by two priests of high-knowledge as being within the law. They are lawful. They play by the rules. They engage in established discourse (modernism). They circulate within the confines of capitalist markets. They are commodities, free to be valued, traded, and sold. They are art.


Tags: , , , , , , , , , , , , , , , , , , , , , , , , , ,

Comments: 4

Leave a reply »

  • But when true dissent gets sued, alas, it does need first amendment protection. True dissent is a hypocrite of necessity when it is sued. Being sued sucks the lawless into the law.

    That said, I understand the worries about how this decision is supposed to be applied and the possible irony of its doing damage to appropriation art by demanding (suggesting?) that one ignore concept.

    How will this work in practice? It would have been more fun to see all thirty remanded and watch while Judge Batts (or whomever will take her place by then) tries to apply the lessons as handed down.

  • Nicole Miller-Co..

    You had me at ‘catatonic state’. I haven’t read a piece of contemporary art theory this good since college. A lucid and beautifully crafted argument. Kind thanks.

  • One big worry for copyright lawyers is that this decision gives little, if any, guidance as to what is transformative. The other problem of course is that there is no rhyme or reason as to why 5 of the 30 should go back to Batts. Why are those 5 so different?

  • You’re welcome, Nicole. I try to put a few fun laughs (and jabs) here and there. Cheers!

  • Leave a Reply
    Your gravatar
    Your Name


Clancco, Clancco: The Source for Art & Law,, and Art & Law are trademarks owned by Sergio Muñoz Sarmiento. The views expressed on this site are those of Sergio Muñoz Sarmiento and of the artists and writers who submit to They are not the views of any other organization, legal or otherwise. All content contained on or made available through is not intended to and does not constitute legal advice and no attorney-client relationship is formed, nor is anything submitted to treated as confidential.

Website Terms of Use, Privacy, and Applicable Law.

Switch to our mobile site