In March a federal district court judge in Manhattan ruled that Mr. Prince — whose career was built on appropriating imagery created by others — broke the law by taking photographs from a book about Rastafarians and using them without permission to create the collages and a series of paintings based on them, which quickly sold for serious money even by today’s gilded art-world standards: almost $2.5 million for one of the works. (“Wow — yeah,” Mr. Prince said when a lawyer asked him under oath in the district court case if that figure was correct.)
The decision, by Judge Deborah A. Batts, set off alarm bells throughout Chelsea and in museums across America that show contemporary art. At the heart of the case, which Mr. Prince is now appealing, is the principle called fair use, a kind of door in the bulwark of copyright protections. It gives artists (or anyone for that matter) the ability to use someone else’s material for certain purposes, especially if the result transforms the thing used — or as Judge Pierre N. Leval described it in an influential 1990 law review article, if the new thing “adds value to the original” so that society as a whole is culturally enriched by it. In the most famous test of the principle, the Supreme Court in 1994 found a fair use by the group 2 Live Crew in its sampling of parts of Roy Orbison’s “Oh Pretty Woman” for the sake of one form of added value, parody.
In the Prince case the notoriously slippery standard for transformation was defined so narrowly that artists and museums warned it would leave the fair-use door barely open, threatening the robust tradition of appropriation that goes back at least to Picasso and underpins much of the art of the last half-century. Several museums, including the Museum of Modern Art and the Metropolitan, rallied to the cause, filing papers supporting Mr. Prince and calling the decision a blow to “the strong public interest in the free flow of creative expression.” Scholars and lawyers on the other side of the debate hailed it instead as a welcome corrective in an art world too long in thrall to the Pictures Generation — artists like Mr. Prince who used appropriation beginning in the 1970s to burrow beneath the surface of media culture.
But if the case has had any effect so far, it has been to drag into the public arena a fundamental truth hovering somewhere just outside the legal debate: that today’s flow of creative expression, riding a tide of billions of instantly accessible digital images and clips, is rapidly becoming so free and recycling so reflexive that it is hard to imagine it being slowed, much less stanched, whatever happens in court. It is a phenomenon that makes Mr. Prince’s artful thefts — those collages in the law firm’s office — look almost Victorian by comparison, and makes the copyright battle and its attendant fears feel as if they are playing out in another era as well, perhaps not Victorian but certainly pre-Internet.
In many ways the art world is a latecomer to the kinds of copyright tensions that have already played out in fields like music and movies, where extensive systems of policing, permission and licensing have evolved. But art lawyers say that legal challenges are now coming at a faster pace, perhaps in part because the art market has become a much bigger business and because of the extent of the borrowing ethos.
Dip almost anywhere into contemporary art over the last couple of years to see the extent. The group show “Free” at the New Museum in 2010 was built partly around the very idea of the borrowing culture, the way the Web is radically reordering the concept of appropriation, with works that “lift, borrow and reframe digital images — not in a rebellious act of stealing or a deconstructive act of critique — but as a way to participate thoughtfully and actively in a culture that is highly circulated, hybridized, internationalized,” as its curator, Lauren Cornell, wrote.
Christian Marclay’s wildly popular video “The Clock” from 2010 was 24 hours of appropriation, made from thousands of stitched-together fragments from films and television shows. Rob Pruitt’s show “Pattern and Degradation” at the Gavin Brown and Maccarone galleries in 2010 lifted designs from Lilly Pulitzer, from Web photo memes and from a couple of T-shirt designers, whose angry supporters staged a flash-mob demonstration to protest the use of the design without attribution.
Mr. Marclay and Mr. Pruitt were both born before the 1980s. But to look at the work of younger artists, especially of those who don’t remember a time before the Web, is to get a true sense of the velocity, and changing nature, of appropriation.
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