Court Jester: Is Richard Prince Using the Legal System as a Medium?

Mr. Prince. (Courtesy Patrick McMullan)

In the 1990s, the critic Rosalind Krauss argued against the concept of traditional mediums, like painting and sculpture, favoring instead the term “technical support,” which to her better describes the way contemporary art works.

Take Ed Ruscha, she wrote in one essay. His photographs of American gas stations and parking lots are conceptual, so it wouldn’t be right to say photography is his medium. Instead of paint, he uses the automobiles themselves, and all the cultural touchstones neatly packed into their trunks.

Last week, lawyers for Richard Prince and the photographer Patrick Cariou went to court in the latest hearing of a copyright infringement case that has begun to resemble technical support, or some kind of extended medium, for the 31 paintings in question. Any case where lawyers argue what is or isn’t art tends to have some kind of critical value, if only because it serves as a kind of plain-English catalog essay reduction. The Prince case goes beyond this, though, and begins to enter the realm of technical support in the artist’s bizarre refusal to defend his works on a basic level, which, regardless of Mr. Prince’s intent, makes a curious statement about them at a time when the courts have, in some instances, become a place for artistic expression.

To rehash the details of Cariou v. Prince, in 2007 Richard Prince made 31 paintings for his first show at one of Gagosian’s New York galleries, titled “Canal Zone.” He didn’t spend much time on them. Some took half a day, others only two hours. Among his sources was the photographer Patrick Cariou’s 2000 book, Yes, Rasta, from which Mr. Prince clipped images of native Rastafarians and their jungles and incorporated them into his paintings. The paintings are part of a broader project, a script he says he’s writing in which the end of the world occurs while a family vacations on St. Barts, where Mr. Prince bought Yes, Rasta.

No one has called these his best works. For one of the paintings, Mr. Prince threw a few paint splatters on one of the Rastafarians, and placed a separate photo of a guitar in his hands. The message of the piece, Mr. Prince said in the court record, was, “Hey, this guy is playing the guitar.”

Artists, when explaining their art in court, tend to be fairly sober and straightforward, since the stakes are high. Constantin Brâncuşi famously battled U.S. customs in 1927 in a case that determined that his Bird in Space series, though highly abstract, was art rather than bits of metal, as it had initially been classified (that case was recently replayed when the European Commission determined that works by the late fluorescent light-tube sculptor Dan Flavin and video tableau creator Bill Viola were only art when they were plugged in—if you’re shipping him, Flavin becomes “wall lighting fixtures” and subject to a different value-added tax).

Mr. Prince hasn’t been exactly playful with the courts, since he was sued and clearly didn’t want to be, but his behavior marks a departure from the standard “but is it art?” case in his refusal to explain himself, even under oath. He wouldn’t call his use of the Cariou photos satire, which is protected under fair use, and would have been a fine argument since he’s known for making paintings that are simply jokes written out on canvas. He could have tried to gin up some meaning for the works, since they feature none-too-subtle postcolonial, racial and consumerist overtones. Instead, when asked to describe one painting, he said, “I’m trying to make a kind of fantastic, absolutely hip, up-to-date, contemporary take on the music scene.” The goal for another was to make a “balls-out, great, unbelievably looking, great painting that had to do with a kind of rock-and-roll painting on the radical side, and on a conservative side something to do with Cézanne’s bathers.” He’s pitched a video game about the “Canal Zone” series. Or, to hear about it from the record: “I think I ran this by Michael Ovitz, and he loved the idea.”

If you accept that an artist’s behavior off the canvas may infuse works with new meanings, regardless of intent, Mr. Prince’s has certainly done something like that, and that his statements take place in court is not insignificant. Sergio Muñoz Sarmiento, associate director of the New York-based Volunteer Lawyers for the Arts (VLA), sees the legal system as a new form of expression. “We’re at the tip of the iceberg, to be honest with you,” he said in a recent interview at his office.

The new frontiers of legal art tend to address the pervasiveness of the law and, as Mr. Sarmiento described it, the fact that law is “fiction” (he’s actually an artist himself and went to law school as an art project, documenting the entire process from LSAT to bar admission). Three years ago he began the Art & Law Residency Program within VLA that holds seminars for its residents, who in turn make pieces like 2012 resident John Hawke’s authentic-looking notifications of a $11.75 minimum wage, which Mr. Hawke strategically placed near areas where day laborers congregate. Michael Cataldi, a 2011 resident, entered negotiations to create an easement of empty air the size of a room hovering over the roof of a seedy motel in Baltimore and documented the ensuing difficulties. He exhibited the piece during an Art & Law show as “Quiet Enjoyment” (materials: air, lease).

In Mr. Sarmiento’s opinion, the best example of a major court case becoming in some way aesthetically valuable was Massachusetts Museum of Contemporary Art v. Christoph Büchel. In 2007, the Swiss installation artist planned to show his “Training Ground for Democracy” exhibit, a commentary on the war in Iraq, in the museum’s vast Building 5 warehouse. The museum had already installed a 35-foot oil tanker and rebuilt a movie theater there when Mr. Büchel kept pushing for more and more Americana, threatening to bankrupt the small museum with his demands for an airplane fuselage. The museum was at a loss as to what it should do and sued for the right to show the incomplete project. “So, like the Iraq story itself,” curator Nato Thompson wrote in an email that became evidence, “the show has become a black hole, with no good exit. Perhaps that’s the uber-metaphor he’s driving at—though I think a deep-seated bipolarity is more likely the driving force here.”

Mr. Sarmiento said that that court case, in which VLA represented Mr. Büchel on a successful appeal, drew new boundaries in the relationship between artists and museums.

“I think that was a shock to both sides of the table,” he said, “those who come from an institutional perspective—museums, galleries—and it was also shocking to the artists—those who produce the works—because, in the hierarchy of the art world, it became clear that the artist was no longer at the top. Someone or something else is, and I think we’re afraid to know what that is. It could be private donors and corporations, it could be board members, private interests. We don’t know what it is.”

“From that moment I started thinking about the law as a medium, both materially but also conceptually; I became really interested in all the artists who I felt were doing that,” Mr. Sarmiento added. “Now, I can’t comment whether Christoph was using the courts as a medium or a site specific work or an institutional critique project. I don’t know. But I do think there are lawsuits like Mass MoCA v. Christoph Büchel or Cariou v. Prince or some of the [Jeff] Koons cases, Rogers v. Koons, Blanch v. Koons,” where Mr. Koons defended his appropriation of photographs for his own works, “that eventually become or can be seen as an extension of their artistic projects.”

While he hasn’t shown any sign of embracing it, neither has Mr. Prince exactly rejected this kind of interpretation. Last year, he debuted a new project, which seems to have been based on his court case. A notorious bibliophile, he had a printer create editions of The Catcher in the Rye that left the novel untouched, merely substituting his own name for J.D. Salinger’s on the jacket and title page. He’s sold these in Central Park and at the MoMA P.S.1 art book fair, but it remains a somewhat under-the-radar, personal project (one eerily previewed by a hypothetical posed in a 2007 New York Times story where Jim Krantz, whose cowboy photography has been used in Marlborough ads appropriated by Mr. Prince in the 1980s, asked “If I italicized Moby-Dick, then would it be my book? I don’t know. But I don’t think so.”), though a slightly risky one. The judge in the Cariou case, Deborah Batts, was the same to block an unauthorized Swedish sequel of the book from coming to the States.

“It is a gigantic ‘eff you’ to the legal system that screwed him over,” said artist and writer Greg Allen, who has released a book of the best parts from the initial Cariou v. Prince court documents. “It’s like, ‘Come and  get me. You really want to screw me over? I will infringe the Holy Grail. I will stomp on J.D. Salinger’s skull and call it art.’ And I think it’s kind of brilliant.”

Mr. Allen said he’d eagerly awaited Cariou v. Prince because he thought it would represent a chance to get to know the real Richard Prince, whose biography has always been somewhat murky. Mr. Prince claims he was born in the Panama Canal Zone, though so much is unknown that Guggenheim curator Nancy Spector joked to The Times ahead of his 2007 retrospective there that “his real name might not be Richard Prince.”

Instead Mr. Allen found a punk rock nothingness, which he actually didn’t mind.

“I always thought Prince was cynical,” he said. “And that he was sort of gaming things to see what he could get away with in the art world, but the more I stuck with his deposition the more I was like, ‘He actually believes what he’s doing.’ He’s not cynical, he’s pessimistic. That’s a different thing.”

“The best-looking thing in [Prince’s] world really is a cigarette ad,” he added.

Mr. Sarmiento thinks Mr. Prince’s behavior is just part of a larger cryptic shtick. (It may surprise people outside the art world to discover that many artists’ sympathies lie not with Mr. Prince—who is arguing, albeit with dubious efficiency, broader rights of expression—but with Mr. Cariou.) I asked if Mr. Prince’s theft might be a radical statement about power in the art world. After all, here’s an artist represented by the biggest gallery in the world throwing his weight around, selling thoughtlessly appropriated works to blue-chip collectors for millions of dollars without any benefit accruing to the lesser-known artist.

Mr. Sarmiento thought the effectiveness of such a statement might be limited and cited the work of the Spanish artist Santiago Sierra, who does something in this vein by, for instance, giving heroin-addicted prostitutes drugs in exchange for the privilege of tattooing lines on their backs.

“People say, well, you’re just perpetuating the same thing that you’re supposed to be critiquing,” Mr. Sarmiento said. “Are you not also exploiting them? Or having an economic transaction with this individual, this human being, maybe not for sex but for a tattoo?”

We may never know exactly what Mr. Prince’s intent has been in all this (he was unavailable for comment), just as we may never know, regardless of the final court outcome, whether or not it’s right for an artist to appropriate work if he says the new work is meaningless, though it’s clear Mr. Prince’s behavior in the initial case has affected every subsequent detail of the appeal. Last week one of Mr. Prince’s lawyers, Joshua Schiller, tapped the dumpster-sized podium at the Second Circuit Court of Appeals hearing and said that his client has boxes of similar sizes brimming with clipped images like the ones from Mr. Cariou’s book. He called them the “raw ingredients” of his client’s art. It was meant to be a defense, but in the context of this case, it sounded a little like a threat. We have Mr. Prince to thank for that.

Court Jester: Is Richard Prince Using the Legal System as a Medium?