Copyright and Context

Why a landmark ruling in favor of photographers isn’t actually very helpful at all

I photograph a lot of lawyers. Every time I meet an intellectual property attorney I tell them my theory that copyright is like the wild west: a rough, lawless territory where anything goes. They chuckle politely and agree. 

I developed this theory after realizing that nobody—from artists to attorneys—could say with much certainty how any given case of copyright infringement might be decided in a court of law. It frequently seems to come down to a judge’s personal interpretation of copyright and how they’re feeling on the day their decision is due.

How else could you explain the continued record of legal victories for an artist like Richard Prince? Prince became rich and famous by copying, cropping and selling—for vast sums of money—“rephotographs” of works made by other artists. Perhaps his most famous works are rephotographs of the Marlboro men originally made famous by advertising photographers in the latter half of the 20th century. Prince rephotographed magazine spreads of these ads, cropped out any text and logos, then printed them large and sold them in art galleries as his “Untitled (Cowboy)” series. One of these was the first photograph to ever sell for more than $1 million, and just this year another cowboy rephotograph sold for $3 million. Granted it’s a very large print, but still. It’s a photograph of a magazine ad that was originally made by another artist—a nameless photographer.