So who evades the law, who doesn’t, and why?
The Pictures Generation, the Copyright Act of 1976, and the Reassertion of Authorship in Postmodernity
By Nate Harrison
In the three decades since artists Sherrie Levine and Richard Prince first exhibited their provocatively infringing appropriated photographs, inexpensive reproduction technologies and distribution systems have further thrown established conventions of authorial control into disarray, and at a seemingly exponential rate. Reactionary focus, then, to both the legal regulation of image production and the prosecution of violators has been rigorous. “Intellectual property” now figures significantly as a cross-over category between legal and cultural discourse.1 Within the domain of art, appropriation since the Pictures generation might have been determined by artists to be a very risky endeavor. But while there has been the occasional lawsuit, there is nonetheless no doubt that the practice of appropriation in contemporary art is alive and well. There is a lot of copying going on, with, as scholar Martha Buskirk describes, “The types of copies that appear in contemporary art…as varied as the materials artists have employed.”2
Some initial observations might help account for this. An obvious one is that most artists, after all, are not legislators, lawyers or judges; they are arbiters not of law but of culture, historically tasked with interrogating its significance, even as the sign has become inextricably linked with its regulation through the legal apparatus.3 Disregard for the rule of copyright law is thus perhaps an anti-establishment refusal, feeding the notion that for artists, the law does not apply. And while that isn’t true, it might often appear that way. As Richard Prince himself has stated in justifying his use of various Marlboro Men, “I never associated advertisements with having an author.”4
So who evades the law, who doesn’t, and why? To understand how appropriation art slips in and out of the grasp of intellectual property regimes, inquiry should be carried out at the level of praxis: what sort of content have artists been appropriating? How, if at all, are they transforming it? And where in the cultural and economic structures of society are the appropriated, the “violated,” located, and what bearing does this location have on the potency of appropriation?
My analysis begins with initially setting the discourse of appropriation art within a historical shift that occurred on two registers, beginning approximately in the late 1970s. The first shift marks a period during which artists, art critics and cultural theorists in the West were coming to terms with an emergent but elusive “postmodernism.” Among others, scholar Frederic Jameson diagnosed the phenomenon by stating that its modes of production differed from those of previous decades in that they increasingly blurred the boundaries between high culture and more overtly commercial, “low” cultural forms, problematizing, as artist Barbara Kruger wryly observed, the newspaper category “Arts and Leisure.”5
Nightcore Girl vistiting Nitecore at New Portraits Show @ Jane Harmon
There is a lot of copying going on, with, as scholar Martha Buskirk describes, “The types of copies that appear in contemporary art… as varied as the materials artists have employed.”
One effect generated by this blurring was contemporary art’s return to figural representation across a variety of media, beyond the indexing/archiving photographic tendencies of conceptual art. Appropriation art especially reclaimed the figure. Moreover, appropriation based practices triggered a shift in the mode of interpretation of the work of art, from a modernist approach that had privileged the formal and original qualities of a subjective totality to a postmodernist one that emphasized the discursive and allegorical qualities of fragmentation and desire. The use of appropriated photography seemed particularly suited to the allegorical, precisely because of its status as the always-already- seen, with readings thus premised upon some recognition of deferring authentic determination.6 Such deferment does have negative political consequences, however.
Postmodernist allegory can, through a multiplicity of contents (or what Baudrillard might have termed “floating signifiers”), frustrate a sense of historicity and therefore any critical artistic pursuit that depends on historical consciousness. Hal Foster described this allegorical multiplicity as “eclectic historicism,” a cherry-picking of the cultural past and present that reduces the work of art to stylistic pluralism.7
Countering such a neoconservative postmodernist art, critics theorized a poststructuralist variant, a type of practice linked to French theory’s rhetoric of “the death of man” as the “centered subject of representation and history.”8 Opposed to the embrace of a new pluralist humanism, poststructuralist art was tasked with exposing its own cultural encoding. The appropriation of an indexical (i.e., “natural”) image supplemented any originary meanings it might have connoted with critical reevaluation of, to cite Craig Owens, “the degree to which “nature” is always already implicated in a system of cultural values which assigns it a specific, culturally determined position.”9 A certain version of appropriation practices thus often depended on an unmitigated poaching of photographic cultural symbols in order to voice their criticisms.
Those practitioners affiliated with early appropriation art are often referred to as “Pictures” artists, after the exhibition Pictures, curated by Douglas Crimp at Soho, New York’s Artists Space in the Fall of 1977.10 Rather than maintain the exhibition as a founding moment however, I would like instead to situate the beginnings of postmodernist appropriation within the context of the second historical shift mentioned earlier; that is, within the history of law. A new context emerges when reframing appropriation practices through an event that preceded Pictures by a year: the passing of the Copyright Act of 1976. Analyzing appropriation through legal developments at that time can assist in a better understanding of the wider postmodern moment within which appropriation art has been historicized.
On October 19, 1976, President Ford signed into law the first major revision of United States copyright since 1909.11 The Copyright Act of 1976 confronted a number of author’s rights issues relating to the myriad technological advances (e.g., film, radio, television, etc.) that had occurred in the first three-quarters of the twentieth century. Addressing the accelerated manner in which cultural works could be reproduced, both enhanced legal definitions, as well as measures not previously codified, were included in the new legislation, all of which attempted to maintain the balance between author’s rights and fundamental freedom of speech rights. In other words, the 1976 Act attempted to protect new types of authors and the works they produced from would-be counterfeiters or pirates, while avoiding overreach that might foreclose certain artistic possibilities and thus have a “chilling effect” on cultural production as a whole.
However, the new law seemed to expand authorial rights in several ways. One fundamental change was redefining what sorts of expression qualified for copyright protection. An all-encompassing definition, “original works of authorship fixed in any tangible medium of expression,” was introduced.12 Yet language that defined copyright qualitatively was avoided, granting authorship to new generations whose only requirement was that their creations be “original.”13 Another change to the Act included the authorial control over derivative works, those that are “recast, transformed, or adapted” from the original, in both the present and the future.14
Sherrie Levine, from Untitled (After Edward Weston) series, 1980-1981
Appropriation Art continued the offensive, denying the very possibilities of originality and authenticity through re-presentation as art images pilfered from an industrially built environment glutted with a mass-circulation of signs.
These apparent expansions of authorial rights stem from what legal scholars such as James Boyle identify as copyright’s deferential treatment of the “romantic author,” a figure constructed towards the end of the eighteenth century when new European social and economic orders were being born, and “art” was separating from mere “craft.”15 However, through a series of court rulings both in England and the United States crossing over the eighteenth and into the nineteenth centuries, the change in scope over what constituted an author’s “work” had the long-term consequence of shifting copyright’s emphasis away from authorial intentionality and towards formalist analyses. Even as copyright law uncritically embraced a rhetoric of authorial originality, it nevertheless mitigated its novel or innovative aspects in favor of recognizing the author merely as the work’s point of origin. Meanwhile, the components that made up the work were disaggregated and subjected to judicial interrogation in order to determine their degree of derivation––which elements of the romantic author’s “total vision” were in fact “original,” and which elements were not. In the modern era the work displaced the author as the central determining character in copyright doctrine.16
If subordination of the author to the work is acknowledged, then the expansion of rights in the 1976 Copyright Act indicates, as Marci Hamilton suggests, not deference to but disdain for the romantic image of the author.17 Expanded author’s rights in the 1976 Act, then, while appearing to champion an antiquated figure from the cultural past, seemingly acted more as a foil for copyright’s actual purpose: providing the means for an expanding intellectual property market in a post-industrial economy. One of the Act’s clauses in particular suggests an effacement of the romantic author, perhaps more than any other: that is “work-made-for-hire.” Mentioned only in passing in the 1909 Act, work-made-for-hire was given a thorough treatment in the 1976 revision, providing legal buttressing for a twentieth century economic structure already dependent on the division of labor.18 Far from facilitating a romantic conception of authorship, copyright’s work-made-for-hire doctrine seized control of individual agency, returning the author to his or her place as a “just another cog in the wheel” in the fabrication processes of a postmodern culture industry. Work-made-for-hire had essentially become corporate copyright.
Interpreting copyright in this way provides an alternative theoretical space from which to assess the poststructuralist variant of appropriation art appearing in the late 1970s. In some respects, the “death of the author” proclaimed by post-structuralism and allegorized in appropriation art had already become a reality in American copyright law. Let us now return to the early careers of Richard Prince and Sherrie Levine, in light of the 1976 Act‘s degradation of the romantic author.
Appropriation art’s critique of the ideology of the original and authentic author was premised upon an assumption that such a figure, esteemed in bourgeois culture practically since the advent of modernity, continued to undergird contemporary production. And to some extent this was (and still is) accurate; yet appropriation art challenged a discourse of the transcendent, autonomous subject that had begun with nineteenth century romanticism and persisted within several areas of modern art, particularly modernist photography, abstract expressionism in the 1940s and ‘50s, and neo-expressionism in the 1980s. As mentioned earlier, such a discourse became increasingly problematic with art’s infiltration by the mechanical image, as exemplified in Pop Art. Appropriation Art continued the offensive, denying the very possibilities of originality and authenticity through re-presentation as art images pilfered from an industrially built environment glutted with a mass-circulation of signs. It is important to recall that both Levine’s and Prince’s early appropriations were lifted from what were already reproductions––reproductions that had until then performed the meaning-making role the two artists were simply rendering transparent. Levine’s appropriation of reproductions of Edward Weston photographs pointed to the fact that they, despite being “unoriginal” halftone copies, were nonetheless mass circulating as representative of Weston’s original vision, reaffirming his place, and the patriarchal gaze in general, within the canon of modernist photography in the process. And Prince’s appropriation of reproductions of cowboy images from Marlboro advertising campaigns made plain the notion that images many times removed from their source were being employed in the service of reifying an authentic western subject essential to American identity. In short, Levine’s and Prince’s use of appropriated material starkly asserted that within a postmodern condition, the author had become irrelevant because the original gesture had become unimportant; the copy adequately stood in its place and performed its legitimizing function.
Critics interpreted Levine’s and Prince’s unabashed usurpations of images as radical interrogations of the categories of originality and authenticity within the social construction of authorship. Writing at the outset of the 1980s, Hal Foster heralded (poststructuralist) appropriation art as critical to the “recoding” process within postmodernity’s contests of meaning.19 Setting appropriation art in relation not only to the construction of the social codes of representation but also to the actual United States Code and its then newly amended copyright clause, perhaps Foster’s characterization can be taken quite literally.
Now, while it is very doubtful Sherrie Levine and Richard Prince intended their early works as rebuttals to the 1976 Copyright Act, they can nonetheless be read as “preemptive strikes” against the legal construction of authorship.
Now, while it is very doubtful Sherrie Levine and Richard Prince intended their early works as rebuttals to the 1976 Copyright Act, they can nonetheless be read as “preemptive strikes” against the legal construction of authorship. More than pointing to the loss of determinate social meaning, the works allegorized the impossibility of authorship outside the paradigm of the derivative sanctioned through copyright law. Perhaps Benjamin Buchloh comes closest in acknowledging appropriation art’s allegorization of the derivative nature of cultural production. “In the splintering of signifier and signified,” he writes, “the allegorist subjects the sign to the same division of functions that the object has undergone in its transformation into a commodity. The repetition of the original act of depletion and the new attribution of meaning redeems the object.”20
Levine’s and Prince’s appropriations thus seemingly problematize the author-subject both within a humanities-based discourse of original genius and within a legal-economic one that assigns authority to originality. Yet for the latter critique to retain purchase, it must assume a centered author-subject under the law. Here Buchloh’s “division of functions” subtly points to the opposite, for implied in the sign’s initial fragmentation is a productive apparatus premised on a division of labor, the very process legitimized by copyright law through its work-made-for-hire clause. The object is “redeemed” precisely by a reclamation of authorial agency.
Read through the lens of copyright’s de-individuation of the author then, Levine’s and Prince’s gestures invite a reading at odds with a poststructuralist “death of the author” critique. Rather than undermining any romantic notion of authorial originality in a culture of the copy, the works reasserted the very productive core of the romantic authorial mode––one premised on private ownership through labor. In Lockean terms, Levine and Prince acted upon the “media” environment around them, defiantly re-centering themselves as possessive individuals, as the authorities over their expressions amidst an impersonal productive apparatus churning out derivatives whose actual creators can not be readily traced.21 Here any aesthetic novelty almost becomes superfluous; Levine and Prince merely employed those processes familiar to the nameless technicians working in the creative industries: cutting, cropping, enlarging, editing, printing.22 What is novel is that, through mixing their labor with their surroundings “in the radical formulation that [the artists preferred]” as Martha Woodmansee asserts, Levine and Prince took individual control of the mass-authored image, and in so doing, reaffirmed the ground upon which the romantic author stands.23
In this authority over the image thus lies the contested core of Levine’s and Prince’s gestures. For with control comes the ability to insert and thereby manage meaning, creating discourse––what Foucault termed the “author-function.”24 Any potential that Levine’s and Prince’s appropriated photographs had as fomenters of a counter-hegemonic discourse would have been underscored by their status as copyright infringements. In the eyes of the law, their work would almost certainly not have constituted “original works of authorship,” which, from the perspective of a critique of the legal construction of authorship, is no doubt part of their reason for being. Consequently, Levine’s and Prince’s provocations should have invoked the wrath of the appropriated images’ copyright holders. And yet exhibition (and collection) of their “rephotographs” was permitted, even encouraged, much to each artist’s benefit. Eventually, Levine and Prince, whose works appeared the most antagonistic towards prevailing social and legal conventions of authorship, were to be validated as authors par excellence by an institution of art that had never been entirely convinced of the so-called death of the author, and could even provide a “second tier” of lax copyright regulation in the name of cultural progressivism.
Fast-forwarding thirty years to Prince’s retrospective Spiritual America at New York’s Guggenheim Museum, his celebration as a romantic author is evident. In the exhibition’s catalog, he is described as an artist who:
Makes it new by making it again. Although his [work is] primarily appropriated…from popular culture, [it] convey[s] a deeply personal vision. His selection of mediums and subject matter…suggest a uniquely individual logic…with wit and an idiosyncratic eye, Richard Prince has that rare ability to analyze and translate contemporary experience in new and unexpected ways.25
Noteworthy is that this introduction was penned by a chief executive of Deutsche Bank, the show’s major sponsor, for corporate interest in the arts has played a pivotal role in maintaining the artist as a romantic figure. Corporations have used the artist as a public relations tool to both align themselves with the progressive values associated with art and reach new consumer groups.26 The romantic artist is naturally attractive for the corporation, because he or she embodies the same ethos that drives free market commerce––what Richard Bolton, following Marcuse, has termed “enlightened self-interest.”27
#5 Untitled (Cowboy), Richard Prince (2001-02)
With Prince’s singular authorial control, he becomes Krantz’s surrogate, the self-possessive author Krantz cannot be. This however can only provide cold comfort, for Prince has never acknowledged Krantz, who has been replaced now twice over as the author of the photographs.
Recognizing the motives corporations have in aligning themselves with art that appears to conflict with their interests may at least partly explain how Prince was able to evade any legal skirmishes over his Untitled (cowboy) prints. Phillip Morris USA owns the Marlboro brand, and, of course, the copyrights to the cowboy images from which Prince appropriated. Their tacit approval of Prince’s work might contradict the maximum control logic characteristic of intellectual property regulation, but perhaps Phillip Morris’ desire to associate itself with artistic innovation has outweighed its commitment to brand management. Or perhaps allowing Prince free reign is precisely part of its branding strategy; aligning with art enhances Phillip Morris’ image, something important for a tobacco company with a less than stellar public reputation.28
Yet still left unaccounted for is photographer Jim Krantz who, as a work- made-for-hire employee, actually took some of those photos for Marlboro. With Prince’s singular authorial control, he becomes Krantz’s surrogate, the self-possessive author Krantz cannot be. This however can only provide cold comfort, for Prince has never acknowledged Krantz, who has been replaced now twice over as the author of the photographs. And finally, under Prince’s authority, the images travelled full-circle; advertising-became-art-became-advertising, when Krantz’s images lined Manhattan streets in posters and banners that promoted Prince’s exhibit.29
Levine’s Untitled (After Edward Weston) series has had no less help from institutional para-regulation. Her appropriation of Weston’s 1925 images was perhaps riskier, for she was taking from a canonized figure in modernist photography; any legal skirmish would be artist versus artist. The exhibition of the work in 1980 did catch the attention of the Weston estate, and while the details are vague, by 1981 Levine had moved on to appropriating the FSA work of Walker Evans, whose government commissions remain in the public domain.30
And Prince’s appropriation of reproductions of cowboy images from Marlboro advertising campaigns made plain the notion that images many times removed from their source were being employed in the service of reifying an authentic western subject essential to American identity.
This same year, 1981, was also the year that Weston’s archive and copyrights were sold to the Center for Creative Photography at the University of Arizona, which spends “a lot of time encouraging fair use, discouraging censorship, and preserving the work of artists…so that they can be appreciated by generations to come.”31 The Center is aware of Levine’s practice, but has, like Phillip Morris with its Marlboro images, given tacit approval to it; in addressing the limits of appropriation, Amy Rule, Head Archivist at the Center, states, “We might go after someone using [Weston’s] images to sell laundry soap, but I doubt that we would try to stop an artist’s exploration of legitimate aesthetic issues.”32 Yet it is not that appropriation art can’t be used to sell, as Prince’s street banners demonstrate. It is that it is, within the institution of art, limited to selling itself as a concept of art, as a concept of resistance that can only ultimately be experienced in the imaginary realm provided by what Marcuse might have called “affirmative culture.” “To pose real trouble for the author in copyright doctrine,” scholar Jane Gaines concludes, “Sherrie Levine would have to reproduce her own copies of Edward Weston as postcards and then sell them––the stiffest test of “free commercial speech.””33
I end with another quote from Jane Gaines. Writing in 1991, she states, “As yet, we have too few ethnographies of the use of popular icons in their travel from the avant-garde to the popular and back again…it would be a mistake…to look to the law instead of to use and custom as the primary indication of how ideological domains are configured.”34 This text, however preliminary, has been an attempt at just such a study. In it, I have tried to look to custom, use and the law, analyzing the parallel histories of appropriation strategies in art and copyright law’s transformation since the late 1970s and the ways each approached the construction of authorship. Setting Richard Prince’s and Sherrie Levine’s early work against the revisions of the Copyright Act of 1976, I have attempted to link the postmodern avant- garde to a reassertion of the author-subject, even as the discourse that enveloped the Pictures movement atthe time nurtured a critique of originality and authenticity. What I find remarkable in examining the period’s criticism is its insistence upon the superiority of the “poststructuralist” variant of appropriation, given the fact that much of it was ultimately recuperated within the institution of art while today, in the age of YouTube, the “remix” collage format––what Hal Foster might label “neoconservative”––has become one of the flash points in the struggle over the reins of meaning-making, as new generations of technologically savvy producers enter (at their own legal risk) the domain of cut/paste culture (or what might be called a now wide-spread “aesthetics of deregulation”).
Nate Harrison is an artist and writer working at the intersection of intellectual property, cultural production and the formation of creative processes in modern media. Nate serves on the faculty at the School of the Museum of Fine Arts, Boston, and lives in Brooklyn, New York.
Text courtesy of Art & Education
(All rights reserved. Text @ Nate Harrison. Images @ Artists.)
1976 Copyright ActAppropriationArchive HighlightsArtCultureEssayInstagramNate HarrisonRichard PrinceSherri LevineThe Pictures Generation
A screenshot of one Instagram post by Richard Prince, including commentary by other users.
Richard Prince has recently attracted a fair amount of performative, high-decibel anger for his new work. In May, at the Frieze Fair, he showed several pieces from his Instagram series — unique pigment prints on canvas made from screenshots, taken by the artist, of other people’s pictures on the photo sharing app Instagram. They typically include a comment by Prince, typed in below the photo, as signature and alteration. Artcritical contributor Kurt Ralske wrote a really insightful essay about the work last fall, when it was shown at Gagosian’s Madison Avenue location. A new exhibition of the series opened at Gagosian’s Davies Street location in London on June 12. A show called “Original” closed at the Madison Avenue location on June 20. Similar to his earlier paintings, such as Nurses or his Eden Rock series, these are the covers of pulp novels — illustrators’ original cover art framed with the book for which it was produced. They’ve attracted far less scrutiny and heat than his Instagram images.
Richard Prince, Untitled (original), 2010. Original illustration and paperback book, 46 × 37 inches. Courtesy of the artist and Gagosian Gallery.
Both new series, and much of the rest of Prince’s oeuvre, use a similar operation. He takes preexisting material, without permission, and reproduces it with his name attached. He often changes very little (if any) of the original matter. That maneuver has a very long lineage, as many art admirers will recognize, in Prince’s career, his contemporaries, and in the generations that preceded him: Sherrie Levine, Andy Warhol, Marcel Duchamp’s Readymades, the codified iconography of various cultures — and etc. It can often be difficult to distinguish between convention, appropriation, plagiarism, and homage. Repetition, reproduction, iteration, also at play here, have similarly long genealogies in Lucas Cranach, the Dadaists, Warhol again, Louise Lawler, Robert Gober, and so many others. Those are obviously histories of which Prince’s detractors are either unaware, or that don’t carry weight.
In recent weeks, media outlets fleetingly percolated at the commotion around Prince, including not only the fine-arts press, but also FOX News, the BBC, Bloomberg, Wired, blogs, etc. A flood of angry Instagram and Twitter users has periodically swamped the comment threads of Prince’s online accounts. Many (if not all) of those complaining about Prince’s work also routinely use repurposed, appropriated, or otherwise copied images. A vitriolic audience has discovered Prince exactly when he may be most relevant, his discipline now woven into daily life, and they are not happy about it.
In response to images of Prince’s Instagram paintings posted to his social media accounts, viewers accused him of theft, called for lawsuits, encouraged suicide, or simply asserted that he sucks and that his work augers the death of creativity. Users complained that the images were stolen, that the original creator is entitled to compensation, that the works shouldn’t carry a $100,000 price tag, and even that it is wrong for any artist to receive any money for their work. These images have previously been called sexist, in an artnet article by Paddy Johnson, and by others. Unsurprisingly, those who have had their likeness appropriated have been called victims, a demonym often flogged by enraged interlopers, whether it’s warranted or not.
Installation view of “New Portraits,” at Gagosian London, Davies Street, 2015.
Further, Prince’s paintings fall under fair use provisions of copyright law. The image on Prince’s canvas may include the poster’s original photo, but it is significantly different. For one thing, it’s pixilated and printed in large scale on canvas by Prince, rather than existing compactly on anyone’s smartphone. Moreover, it isn’t just the original photo, but the entire textual and iconographic layout, including the frame created by Instagram and comments added by other users. His commentary acts as both a kind of intervention, final authorial word, signature, and as a type of contextualization, not unlike the signature of “R. Mutt” on Duchamp’s Fountain (1917).
Even minimal alteration or change to the, like, aura of the work can be sufficient. In a 2009 lawsuit, Cariou v. Prince, photographer Patrick Cariou sued Prince for infringement when his documentary photographs were reproduced with minor alterations. Cariou won, initially, and received a settlement, but the ruling was overturned on appeal. The appellate judge found that reasonable observers could distinguish Prince’s work from Cariou’s original. And likewise, we — viewers — can tell the difference between a digital photograph and a photograph printed on canvas with a lot of extra visual information.
An Instagram post by Selena “Missy Suicide” Mooney, comparing Richard Prince’s $90,000 copy of her $90 original photo.
Unlike even Cariou, it strains credibility to imagine that Prince is depriving Instagram users of income. It seems safe to presume that very few users post images for free andalso expectation remuneration. Those who are interested in printing out their images (or screenshots of their images with the additional framing devices and comments, as Prince has done) are still free to do so and to sell them on an open market. Selena “Missy Suicide” Mooney, co-founder of the softcore erotica website SuicideGirls, did just this after one of her models found a Prince-appropriated image of herself for sale at Frieze. In a publicity stunt, Mooney sold exact replicas of Prince’s work for $90, one-one thousandth of the reported price of his originals. All proceeds from her sales were pledged to a charity.
Artcritical contributor David Carrier and I came to the same realization. Carrier explained that this situation is what the scholar and philosopher Arthur Danto called “indiscernables.” The original and the artist’s copies are related but dissimilar, and they’re not in competition with one another. Warhol’s Soup Cans don’t compete with Campbell’s Soup Company or its advertisements. Early in his career Prince also photographed advertisements, such as cowboys pictured in ads for Marlboro cigarettes. Prince and the ad photographer operated in separate markets, and in fact the ad photographer had already been paid (probably well) by the time Prince copied his or her work. So it also goes with Mooney’s models, and with many of the other celebrities pictured on his canvases.
Importantly, the artworks are valuable neither because they’re novel nor because they’re from a photo app, but because they’re being offered by Gagosian as artworks by Richard Prince. Here is one issue of sexism, which is different from the one proffered by Johnson and others. Johnson’s critique is that Prince’s Instagram paintings often reproduce objectifying images of women and his signatory commentary is interpreted as snide and silencing, which is probably true. There is, I think, a clearer and more essential issue of sexism here: although there are several male artists who could plausibly produce and sell this kind of work for very high prices, there are comparatively few women who could command these prices for this product — maybe Lawler, Levine, or Cindy Sherman. These perseverating structural inequities in the art world are sexist, whether or not Prince’s particular images are or not.
Headline from a Huffington Post article on Prince’s work and its recent attention.
Ralske notes that Prince is essentially printing money, and this kind of split between the exorbitant amounts commanded by eminent artists, compared to the fractional prices achieved by everyone else in the long tail, is another kind of institutional inequality. The market’s stratification is matched (created) by the shrinking number of increasingly wealthy oligarchs able to compete with one another in a poorly regulated marketplace. It’s also a reflection of growing inequality generally, globally. This is art as commodity speculation. It seems unlikely that collectors are spending so much money strictly for the image posted by the quoted Instagram user. If they wanted these images, many of which are casual selfies, they could likely buy them directly from the user for almost nothing, or they can see them on Instagram for free — both on Prince’s account and on the accounts of those he copies. They can print, download, or copy the images, and Prince himself has encouraged aggrieved users to do so. What he’s doing doesn’t have to be unique.
Commentary from patrons of FOX News, reacting to coverage of Richard Prince’s Instagram paintings in the popular press.
Nonetheless, many criticisms expect Prince to be unique, but only in the way some people imagine art should be. Complaints of unoriginality and deskilling or laziness here center on the fact that the images aren’t manually mimetic, that is: Prince hasn’t copied a likeness by his trained hand, that he cheated by using a tool. The anxiety of easy art has coursed through culture for a few hundred years, at least. The fear that art is a facile con job remains potent and perennial. Which is not to say that no lazy art exists; we’re awash with it, as no doubt we’ve always been. But bad art’s poverty rarely has to do with technical issues, since some of the worst artworks can be supremely executed, just as certainly as they can be craftless junk abstractions. Or they can be copied images from the Web.
Given the digital platform from which Prince’s Instagram paintings spring, one might call them “vernacular.” Non-attribution, anonymity, and copying are endemic to the Web, and there is little practical distinction between Prince’s paintings and a retweet, a circulating image macro, or the re-enactment of a viral video, such as 2013’s briefly popular Harlem Shake craze. Even beyond the Internet, copying and stealing are deeply embedded in culture generally and historically. In 1976, Richard Dawkins coined the word “meme,” a term now often confused with image macros found all over the Internet. But what Dawkins meant by the word is far broader: it’s any information that spreads through culture, from Shakespeare’s neologisms to articulated human rights to miniskirts to a catchphrase. Lawrence Lessig, in his book Free Culture (Penguin, 2004), asserts that civilization absolutely depends on elaboration and copying to spread ideas and share information. Prince’s use of Instagram — a medium that explicitly encourages widespread reproduction — points to this engagement with culture, which is exactly what so many of the app’s users find engaging.
Richard Prince, Untitled (portrait), 2015.
Inkjet on canvas,
65 3/4 × 48 3/4 inches. Courtesy of the artist and Gagosian Gallery.
It’s worth asking, as Johnson indicates, how in an age of easy copies an artist can sell copies for such high prices. She writes, “Copy-paste culture is so ubiquitous now that appropriation remains relevant only to those who have piles of money invested in appropriation artists.” Peter Schjeldahl also touches on this, writing that the invention of Instagram art was nigh inevitable, but the appeal of Prince’s paintings is brief and that they don’t need to be seen in person to be understood.
However, many people engaged fully in copying and pasting, but only tangentially engaged with the art world (if at all), misunderstand them. Everything in this essay till now is probably a pedantic description of well-trod ground for art cognoscenti, but perhaps dubious to everyone else. So one big, obvious problem of Prince’s work is not even specific to him: the sharp division between the business of art and everything else.
How did it come to be that in the 20th and 21st centuries, artists such as Joseph Beuys and Duchamp made strong arguments that anyone can be an artist and that anything can be art, and yet that knowledge has remains locked in a domain of specialists and insiders? Has the domain been made smaller and smaller? As with complex financial tools used by bond traders on Wall Street, the growing amount of money spent on art appears to have cleaved a small echo chamber for knowledge reserved as arcane and valuable, whether it truly is or not. And as with financial markets, the disparities of pay are masked by more inane questions about whether artists should be paid at all, instead of looking at how a system works that rewards a few people greatly and the vast majority very little.
An Instagram post by model Doe Deere, whose image was reproduced by Prince without permission.
Is the dictum that anybody can be an artist resisted by those anybodies who still believe that only special, innately talented people make art? Although a pretty broad definition of art probably predominates, if you tell people that what they do can be art, they apparently reject the notion, or at least if it’s done for large sums of money by someone using what many lay people dispense freely, even compulsively, online. They don’t seem to want copying weighted by that significance, as if the process could be tarnished by (or could tarnish) a world that they’ve likely been told they don’t understand and can’t participate in, and where the financial stakes are alleged to be very high. Art is special, but the wide popularity of Instagram seems to designate the service as vulgar and, by transference, anything that exists on it. Consequently, Prince’s amateur critics implicitly (sometimes explicitly) urge that we should regard with suspicion a person who attempts to make it a space where art might occur, where it can become self-reflexive, critical, ambivalent, tricky — “It’s just Instagram,” as if that means activity there doesn’t matter.
Even if this is the dullest, worst art ever made, why banality should raise such visceral anger is inexplicable. At heart, beyond all the rhetoric of victimization and copyright and redundancy, this resistance seems to be the concern: art is culture and culture is serious. The subtext of “Your copies are taking away their photos,” sounds like “You’re taking away our fun.” The worry is not that Prince is copying, but perhaps that his copying impinges upon one’s own, and one’s control over rebuttal, deletion. And it does so with art-world forces that appear to expensive and separate the image from everything else. In which case, although the reactionary fury is dumbly vented, the underlying angst about the social role, monetary value, and intellectual boundaries of art is a real problem. Unlike art history and copyright and sexism and techne, the cause and the solution for that problem is much more difficult to resolve or even describe. One can hope that the wider audience and frothing attention paid to work like Prince’s might initiate that conversation.
 I can only think of one ancient culture known for prizing ingenuity over tradition in its official artworks: Mayan scholars routinely invented new ways of writing their hieroglyphics, rather than hewing to any particular convention. Others might exist — I’m not sure. Originality and authorship just weren’t very big concerns for much of art’s history.
 In the remainder of this piece I describe Prince’s detractors, meaning his critics outside the professional arts. Later discussions of writing by critics who thoughtfully wrestle with and place Prince’s work in context, such as Paddy Johnson, Kurt Ralske, and Peter Schjeldahl, are exceptions and not the focus of this essay.
 Conversely, some fans have begged him to use their images in his work.
 Users who don’t want such censorship can use another service with more amenable terms.
 Additionally, in 2012 Instagram included language in a new Terms of Service agreement that appeared to provide them rights to all content on their servers, which could be sold to third parties without compensation to the user. After much outcry, Instagram removed the clause and stated unequivocally that it was not their intention to sell users’ images and data. But they retained language that prohibits users from bringing class action lawsuits against them, leading some business journalists to speculate that the company may be protecting itself from angry users should they revert to that policy again in the future. In short: Instagram may someday sell images and other data stored on their servers. Facebook (Instagram’s parent company), and other platforms, similarly claim rights over user content stored on their servers.
 This might be part of the worry, since it makes the image no longer vaporous and passing, takes away the possibility of deletion, should its original author reconsider it in the future.
 In this, too, one sees another real problem on the periphery of Prince’s work. Many of those angry at Prince (presumably art neophytes, but who knows) might object to the high price. A friend of mine, a professional artist, remarked that the $90,000 pricetags seemed surprisingly low. Those sums seem to both justify their status as art for the market, and cast doubt upon it for those ignorant of its operations.
 Such assertions seem perhaps plausible, I don’t know. I’m not sure how earnest or spiteful Prince is. His comments are usually too cryptic for me to parse, though the flavor can be lecherous or juvenile. However, I assume I’ve got a blind spot in this regard.
 There’s not much of a market for self-portraits such as these, even including the outlier case of Kim Kardashian’s recent book of selfies, Selfish (Rizzoli, 2015)
 While they complain about printed screenshots of amateurs and living celebrities, Prince’s scolds are seemingly indifferent to the artist posting images Burl Ives or Barbara Billingsley copied from movies, and his critics may do likewise on their own Instagram feeds.
 Earlier in Western culture, Socrates worried conversely that the implementation of original writing would ruin culture by weakening memory and tradition. While once culture was feared corruptible by invention, it is now imagined to be corruptible by non-invention. And yet culture persists.
 Image macros are the popular pictures with funny text appended in block letters, such as cats talking in a juvenile dialect.
A screenshot of one Instagram post by Richard Prince, including a snapshot of his work and commentary by other users.