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