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

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.”

Rauschenberg

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.

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