Cariou v. Prince: The Art of Negation

Richard Prince, a member of the so-called Pictures Generation, came to renown in the 1980s. His artistic practices, like those of other contemporary appropriation artists, involved lifting images from mass media and entangling them in novel strategies of copying and reinscription. Over time, various artists of this school landed in high-profile lawsuits for copyright infringement. While the history of the courts' responses to this movement has been a complex one and is largely outside of the purview of this essay, it may be said that throughout the relevant chain of precedents one common characteristic preponderates: judicial deliberation in this area adheres to a certain concreteness. The assessment by courts of the similarities and differences between an original work and its allegedly unauthorized derivative is a straightforward affair, based on what is accessible to the direct experience of the trier of fact. Interpretation enjoys limited scope and obeys the strictures of the law's version of common sense. Yet the techniques of appropriation—quotation, excerption, substitution, combination—present a special challenge to this “what-you-see-is-what-you-get” approach. Appropriation art engages formative factors extraneous to the physical forms ultimately arranged before the viewer. Consequently, the art's interpretability presumes the existence of connections and meanings that may only be inferred. It presumes, in other words, the existence of an unconscious, together with the mental operations reflective of the attributes of the unconscious. This leaves courts asked to decide these types of cases in a bind. How should they recognize claims that are not yet known? Seldom has this become more obvious than in the most recent controversy involving the artwork of Richard Prince.

Cariou v. Prince contended over Prince's use of images from a book of photographs of Rastafarians living in Jamaica shot by the professional photographer Patrick Cariou. In producing the Canal Z