Richard Prince at his best: Untitled (Cowboy), 1989, appropriated a photograph used to advertise Marlboro and left it untouched. Photo: Richard Prince; Metropolitan Museum of Art

Hallelujah and hosannas be unto all peoples: the Second Circuit Court of Appeals of the United States of America has decided, in its infinite art-historical wisdom, that 1920s Expressionist photomontage is worthwhile art and is protected by the “fair use” doctrine in American copyright law. On 25 April, in a reversal of a lower court’s findings, the appellate judges decided that when Richard Prince used banal Rasta shots by the photographer Patrick Cariou as the source of 25 angstful paste-ups—late-in-the-day derivations from Hannah Hoch and Kurt Schwitters—he was clearly transforming Cariou’s originals into very different works of art. Sure, those judges are 90 years behind the times, but who ever said that justice moved fast?

On the other hand, because of another part of the same court’s decision, the art world should see weeping and gnashing of teeth: the judges determined that appropriation art, which has been found worthy and fascinating by critics, curators and collectors for a mere 40 years, might not deserve to be protected as part of the “activity and progress in the arts for the intellectual enrichment of the public” that, according to one of that court’s own judges, is a goal of copyright law.


Blake Gopnik
The Art Newspaper