Flux and Focus: The Cariou-Prince-Gagosian Case and the future of "Appropriation Art"

April 25, 2013, the UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT in NY, in the case of Patrick Cariou-vs-Richard Prince/Gagosian Gallery, decided in favor of Prince and Gagosian. The high cost of contesting the decision and the odds against over-turning it, give this ruling an unsettling sense of finality.

Who would be surprised at the court's decision after reading the impressive list of museums that filed Amicus Curiae briefs in support of Prince and Gagosian. Was it artistic freedom, or Gagosian Gallery's team of lawyers and the high stakes business of selling contemporary art that played a major role in the decision? For a moment I'm imagining the deleterious repercussions a counter-decision in favor of Cariou might have had. In that scenario Gagosian and Prince lose big money, inventory, probably clients and they have to re-position themselves in the art world. Change can be good, but museums that have collected Prince's works would see the value of their collections drop, while the value of blue chip private collection portfolios would be diminished as well. And those could be just the first of many dominos to fall. Appropriationism as an artistic practice would certainly become more complicated and risky. After the verdict, drenched by the tsunami of the opposition lawyers and then the judge's decision, Cariou must have felt like a bystander; standing in a shadow cast by the man in his original Jamaican jungle photograph that touched off the controversy.

Although seen as a slam-dunk for Prince and Gagosian, upon further reflection the most recent court decision in this saga complicates things further. At best it's a split decision, leaving many questions unanswered while affecting many other levels of the arts and culture arena with it's judicially activist decisions. We know what happened and who had the winning strategy in the court case, but the implications will likely affect the art world for years to come. The court's further sanctions of Appropriationism seem to clear the way for artists to take anything at hand, tweak it ever so slightly, thus making it acceptable as new work, including another living artist's copyrighted works. One senses that there may be another legal shoe or two to drop as we follow the unfolding mystery ahead.

While pop culture has reigned supreme in America for decades, my B.S. buzzer keeps going off when contemplating this decision. It's a clear victory for a high priced strategy and follow-through in the courtroom, but then there's a different, lingering feeling as well; somehow professional wrestling as theater comes to mind. This prompts the larger question of.. what does it mean now to be an artist? Where's the focus; on the art? or the money? Nearly anything goes if an artist can find the right milieu and market for their work. But from the beginning, it's been that way being an artist: You find a cave, later a patron, then an atelier to study with a master; you seek out a café society, a movement, a gallery, an "ism", an agent and so on.

Now artists are promoted, advertised and hyped like entertainers. Within Appropriationism, computers, photography, facile images and a worship of surface play central roles. Isn't change inevitable and the practice and business of art always just more weighted toward pop culture? Now we see it, we like it and almost instantaneously an image or video clip can go viral.

While excellent artists struggle for acceptance and face obscurity on one hand, on the other, success is often incidental and purveyed by arbiters of taste. Is Prince a clever and inscrutable player, or has he become an instrument of culture? His works seem subject to an almost insidious inflation that comes with branding and name recognition. Prince's Cariou-appropriated imagery was sold for millions of dollars, yet not a dime goes to Cariou? And in losing the case Cariou pays all lawyers fees. Really?

The Cariou -vs- Prince/Gagosian decision also becomes an interesting topic regarding artistic philosophy and ethics in the studio. The discussion drifts toward what it means to be an artist, and by extension a business person. In this bull art market, lucrative prospects for sales understandably excite artists, while their galleries and by extension museums and collectors trust that an artist's studio pursuits will enhance the bottom line of their holdings. Over all this is good. The market for blue chip art currently outweighs most stock market investments. Yet in the shadows, money laundering by arms dealers and drug kingpins is reportedly on the rise as international sales of art works are conducted between two entities listed as "private collections". Forged customs documents and unopened crates allow works worth millions to clear customs at a declared value in mere hundreds of dollars. Other more conventional risks abound. Once touted attributes of an acclaimed work of art may diminish after the buyer passes the threshold of a purchase. Will works central to the Cariou-Prince- Gagosian trial hold their original market value after interest in the "ism" fades?

This all becomes a double-edged sword, as the art world rapidly changes. Marcel Duchamp, Picasso, Rauschenberg and Warhol, Bruce Nauman, Joseph Beuys and many others have made great works of art based on appropriation. Duchamp's urinal came off a showroom shelf; Picasso and Warhol used newspapers freely as form and then content. Beuys moved installation art into the realm of Social Sculpture. Before the LGBT revolution, Rauschenberg's actual bed was collaged onto a painting. Then Tracy Emmins' bed installation hit the scene; it's art mimicking life and vice versa. These artists reached deeply into their respective reservoirs of personal experience for content. As agents of change, their works frequently reflected their uneasiness intrinsic to political and social structures of the time, raising questions that led to important societal changes.

Trends come and go in the art world. We've witnessed dozens of isms, each repudiating the one before it. Appropriationism will most likely follow the pattern, and as long as there's ample electricity, pop culture will reign. But the larger questions of what it means to be an artist in the 21st Century and what are appropriate criteria for the ethics of artistic practice will remain.