Cariou v. Prince: Toward a Theory of Aesthetic-Judicial Judgments

Here’s another new law review article on Cariou v. Prince, and this time it’s from yours truly in collaboration with art historian and curator, Lauren van Haaften-Schick.

The article is the product of a paper I presented at Texas A&M last year, and which dealt with appropriation art, copyright, and Cariou v. Prince. Rather than provide another article on how the Second Circuit’s opinion went awry, I opted instead to take this writing opportunity to memorialize the numerous conversations I had with Lauren van Haaften-Schick on what this seminal appropriation art case meant for contemporary art, art history, and the current state of artistic production and reception. In essence, what this legal opinion means for those who think art is an intellectual pursuit. I asked van Haaften-Schick if she would co-write this article with me in hopes of putting our thoughts and concerns together in one document.

Thus, this theoretical article is written with the intent of impacting the mindset of those in the arts, particularly those that uncritically align themselves with what I call the “appropriation per se is fair use” movement. Not that those in the law cannot gain from our article. Quite the contrary. We imagine the article as providing another glimpse to those in the law other than the spectacle portrayed on a daily basis by glossy magazines, art journals, and sensationalist blogs.

The article is also not intended to rewrite or much less rehash all that has been written about medium specificity, aesthetic judgment, and labor in art. Instead, the article pinpoints these three main areas so as to highlight how law — when misapplied and leveraged by those with nefarious agendas — can have dire consequences for artists, curators, and writers beyond the walls of a court and auction house.