Photography And Critical Theory Since 1960

In modern society, with an ever-increasing number of images posted to social media and the internet daily, the issue of appropriation within the creative industries is more prominent than ever before. Despite there being instances of appropriation within the arts before, such as Andy Warhol’s screen prints, the number of instances in which artists are using already existing images to create their own works is on the rise, this can be seen in the works of Richard Prince and Sherrie Levine. There is a lot of controversy around the idea of appropriation and repurposing existing images, especially in regard to copyright and fair use. This essay will discuss the appropriation and repurposing of existing images by Richard Prince and Sherrie Levine, as well as considering the issues being explored within these practices.

“Richard Prince’s creative strategy has always relied on the process of appropriation.” (ARTUNER | Curated Contemporary Art, 2019) Richard Prince’s work heavily relies on the works of other people. He transforms images so that they no longer belong to the original owners and makers of the images. Some of the most known works by Prince include Cowboys, New Portraits, and Canal Zone.

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Cowboy, an untitled project by Prince where he re-photographed the Marlboro cigarette advertisements and cropped out the typeface, leaving the iconic cowboy and his surroundings. (100 Photographs | The Most Influential Images of All Time, n.d.) Many people saw the repurposed work as theft, when the original photographer of the adverts, Norm Clasen, saw Prince’s work he said “If you see somebody’s copied your work, there’s something deep down in you that says, ‘I’m the author of that. Somebody took that work and re-photographed it. They’re not the ones that were out there lying with the rattlesnakes, the ants, the mosquitos.” Clasen photographed the images for a company, he was paid to sell a product, the Marlboro cigarettes, and Prince simply re-photographed someone else’s hard work to provoke. (Cohen, 2018) “There’s close to probably 17 images that have been copied,” Clasen surmised. “And it has always been a hollow feeling for me to know that that’s happening.”

Prince said about this project “The pictures I went after, “stole,” were too good to be true. They were about wishful thinking, public pictures that happen to appear in the advertising sections of mass-market magazines, pictures not associated with an author…It was their look I was interested in. I wanted to re-present the closest thing to the real thing.” (Guggenheim, n.d.)

Another of Prince’s projects that caused photographer Donald Graham to sue him was his New Portraits collection, which comprised of inkjet prints on canvas where the only modifications to the images by Prince, besides blowing them up in size, are the comments underneath the pictures. The pieces sold for up to $100,000 at New York’s Frieze art fair, where they caused considerable controversy. (Gajanan, 2016)

One of the subjects of the work found out that her image was being used and had been sold for $90,000. Writing on her Instagram Doe Deere said “Figured I might as well post this since everyone is texting me. Yes, my portrait is currently displayed at the frieze Gallery in NYC. Yes, it’s just a screenshot (not a painting) of my original post. No, I did not give my permission and yes, the controversial artist Richard Prince put it up anyway. It’s already sold ($90k I’ve been told) during the VIP preview. No, I’m not gonna go after him. And nope, I have no idea who ended up with it! #lifeisstrange #modernart #wannabuyaninstagrampicture” (Instagram, 2015)

Donald Graham, a photographer who works mostly in portrait, fashion and fine art styles, filed a complaint against Prince as he knowingly reproduced Graham’s photo Rastafarian Smoking a Joint without seeking permission. The complaint stated that the original image had not been modified adequately to warrant being called an original work. (Gajanan, 2016)

The original exhibition of New Portraits was held in 2014 at the Gagosian gallery in New York City, and later in 2015 at the Frieze fair in New York City, yet this is still an ongoing story as in July 2017 a judge rejected Prince’s motion to dismiss Graham’s case against Prince, meaning that the case would continue, and could set a precedent for how the fair-use doctrine relates to Instagram. (Chow, 2017)

The judge said, that to constitute fair use, “the “reasonable observer” must conclude that Prince imbued Graham’s photograph with new meaning, expression or purpose. Because Prince used essentially the entirety of Graham’s photograph without “substantial aesthetic alterations”, he said, the artist needed “substantial evidentiary support” to prove that his work was transformative.” (Gilbert, 2018)

In October 2018 Prince argued that he had to use as much of the photograph as appeared in the Instagram post to accomplish his purpose. In a 15-page statement Prince explains that he wanted to “reimagine traditional portraiture and bring to a canvas and art gallery a physical representation of the virtual world of social media.”

Sherrie Levine is a photographer, painter and conceptual artist who has created some works that are exact photographic reproductions of the work of other photographers. One of the most known examples of Sherrie Levine’s work is her series After Walker Evans. In this series Levine photographed reproductions of the depression-era photographs by Walker Evans. The series became a landmark of postmodernism, both praised and attacked as a feminist hijacking of patriarchal authority, a critique of the commodification of art and an elegy on the death of modernism. (Metmuseum.org, n.d.)

Levine reproduces photographs not by creating a new print from an existing negative, but by photographing a photograph and then claiming authorship of the new image. When Levine first presented the work, it was seen as scandalous, but is now so common that it is barely noticed. (Silas, 2017)

Levine sees her work as more of a collaboration with previous artists, in copying and replicating the work of male artists Levine also levels a feminist critique against the ingrained patriarchy of art history and society at large. Levine also questions how images are culturally constructed and the effects of their dissemination in a media-saturated age. Her use of appropriation - the deliberate borrowing and copying, with little or no alteration, of others' images - has a long history in the 20th century took appropriation to a new level, to the point of infringing on intellectual property rights and arguably – plagiarism. (The Art Story, n.d.)

A lot of the issues being explored and talked about regarding appropriation and repurposing of existing images relates to ownership, copyright and fair use. Fair use is a legal doctrine that promotes freedom of expression by permitting the unlicensed use of copyright protected works in certain circumstances, such as criticism, comment, news reporting, teaching, scholarship and research.

There are exceptions and different factors that come into question of fair use, for example purpose, nature, amount and substantiality and the effect. The works by Richard Prince can be described as transformative, these uses add something new, with a further purpose or different character to the work. The problem with this is that Prince’s works were sold for profit which left it in a grey area as to whether it was a fair use of the original works. Sherrie Levine’s works also fall under the purpose and character of use factor of the fair use doctrine as they have a different purpose from the original work.

There are many outcomes that could come from repurposing and appropriating other people’s works, such as lawsuits and copyright claims being made against your work. Prince has been sued several times by different artists, including Donald Graham, and Patrick Cariou. In the case between Cariou and Prince, the district court ruled in favour of Cariou, holding that Prince’s work was not fair use because it did not comment or critique the original photographs. It was ordered that all of Prince’s unsold Canal Zone works to be delivered to Cariou for him to destroy, sell or otherwise dispose of. On an appeal, the ruling was reversed and held that most of Prince’s works were fair use for several reasons.

“In order to be fair use, a secondary use must transform the original by employing it in a different manner or for a different purpose than the original in order to produce a new expression, meaning or message. A secondary use does not need to comment on or critique the original in order to be transformative as long as it produces a new message.” (Artist Rights, n.d.)

Whether or not art is transformative depends on how it may 'reasonably be perceived' and not on the artist’s intentions. Even though Prince expressly stated he did not 'have a message,' the court still found that most observers would see Prince’s 'Canal Zone' as having a radically different purpose and aesthetic than Cariou’s 'Yes Rasta' and that this was enough to make the work transformative.

To summarise, many artists have used appropriation in their works, many in different ways. Sherrie Levine uses appropriation as a way to comment on things she finds interesting and important, especially with regards to feminism and the ingrained patriarchy in art. Richard Prince uses appropriation in ways to change meaning and the message from the original work in a way that has resulted in lawsuits and copyright and fair use being talked about a lot more within the context of art.

Bibliography

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