Warhol a Lame Copier? The Judges Who Said So Are Sadly Mistaken.avril 5, 2021
As transformed by Prince, the five original Carious stop being documentation of Rastas, or even “photographs” per se, but become tokens in a game of “spot the art” that Duchamp’s urinal launched way back in the teens of last century. Prince is underlining how images live in different cultural pigeonholes — for instance as “illustration,” “documentation,” or “fine art” — and showing how appropriation can unsettle us by moving them from one pigeonhole into another.
So in the piece called “Graduation,” one of the five the court decided were not transformative enough in 2013, when Prince takes an electric guitar from some other source and sticks it into the hands of one of Cariou’s Rastafarians, he’s not really saying much about Rastafarians or rock music or guitars. He is saying something about the power that artists have had, since Warhol, to mix and match imagery across cultural boundaries.
Whereas in the 25 works the court embraced as transformative — where Prince fussed a lot with the look of Cariou’s photos — the original images are just raw material for a collage-y result that took off in a completely different direction, aesthetically, but that therefore ended up being a perfectly old-hat, trivial gesture as far as larger art issues are concerned. Frankly, collaging a Rasta head onto a nude is the kind of thing you might see in a high-school art class. The “transformation” that Prince brought about in those works did not result in any novel creativity worthy of the name.
The concept of “transformation” has been driving lawyers and judges crazy since the Supreme Court first introduced it in a 1993 case. It turns out that it’s wildly difficult to figure out when and how function and meaning and message get changed in a culture — which, as far as art is concerned, is just how things should be. Art is all about finding new ways to worry away at precisely such issues. The hitch comes in imagining that courts could ever try to make hard and fast rules about them.
After puzzling through all the options with me, Christopher Sprigman, a lawyer and professor who teaches intellectual property at New York University, just about threw up his hands: Copyright law, he said, “is often very smart but it’s not very deep — and art is just the opposite. When the two things collide, you get problems.”
In current law, Sprigman said, just about all fair-use decisions, or at least all the tricky ones, inevitably involve some kind of “aesthetic theory” — the kind of “theory” that has a court deciding that collage is the way for artists to go. And aesthetic theory is not, to say the least, where judges have the most expertise. People like to quote the words of the great Supreme Court Justice Oliver Wendell Holmes: “It would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations.”