Category: Digital Culture

Richard Prince Instagram series reflects digital-age values.

“Of course it’s art,” writes The New Yorker critic Peter Schjeldahl. “… though by a well-worn Warholian formula:  the subjective objectified and the ephemeral iconized, in forms that appear to insult but actually conserve conventions of fine art.”

What Schjeldahl is referring to is a September exhibit at the Gagosian Gallery in New York City by visual artist Richard Prince, who for much of his career has made extensive use of appropriation in his work, though it’s fair to say that many would consider the word work generous in Prince’s case. This exhibit featured 38 images that he re-photographed from Instagram and then ink-jet printed onto canvas in poster size along with fragments of social media comments, emojis, and one comment by the artist himself.  The series has been called “lazy” and “theft” by many, adding to Prince’s infamy among photographers and copyright advocates for continuing to unabashedly use other people’s material without permission.  And last week, those communities again had reason to hate on the artist in blogs, articles, and comment threads responding to the revelation that some of the Instagram canvases were sold at the Frieze Art Fair for up to $100,000 a piece.

No question it’s easy to dislike Richard Prince in this case. Though I feel the vitriol is well covered, I’m happy to jump momentarily on the bandwagon to say that, yes, I think this work is lazy and consistent with other examples of Prince’s disregard for fellow photographers. This of course includes the more serious case in which he got away with appropriating the work of professional photographer Patrick Cariou.  Having said that, though, I do think there’s more to this story than a grabby headline about a rich guy making a pile of money with other people’s Instagram photos.  To that end, it occurs to me to examine this exhibit through the lens of the most common criticisms.

It’s lazy. But is it art?

Apparent laziness or effort on the part of the artist is of little use I think in any conversation about either the social or monetary value of a work. This is in fact a premise I reject on a regular basis on this blog — that the value of any single expression should in any way reflect either the intrinsic or extrinsic cost of production.  If for instance a song moves you, it doesn’t matter if it took the artists who created it six weeks of blood and soul or six hours of beer and pretzels. As audience, our role is to enjoy the song or not; how it came to be isn’t necessarily our business.

Moreover, the history of fine art is full of examples of appropriation, found art, and other expressions that critics both professional and amateur might be tempted to describe as “lazy.” Most notably one thinks of the “Warholian formula” to which Schjeldahl refers, but of course some might express similar disapproval of Jackson Pollack, Marcel Duchamp, or any number of abstract painters, sculptors, and performance artists. But if an exhibit or single work sparks conversation, even makes people angry, then we probably have to concede that the expression is art in the critical sense. And as a technical point, my fellow copyright defenders want the definition of art to be broad and critically neutral. So, I think we should be careful that while assailing Prince’s lack of respect for copyrights in general, we not confuse this with dismissing any work as a non-expression even if we want to call the creator a hack.

It’s certainly true that on the surface, this Instagram series hardly reveals anything we might call work on the part of the artist. The compelling element in each print is after all someone else’s photograph onto which Prince has applied the barest effort and called it his own. It is even a safe bet, given the fact that he is quite wealthy as artists go, that Prince has an assistant or two to do the “heavy lifting” for a project like this. And again this places the exhibit in historical line with the Warhol Factory.  But whether intended or not, I do think Prince has actually done something rather interesting by removing these images from the transient (one might say disposable) platform of social media and forced them to exist at least for a moment as photographs — “Artifying non-art,” as Schjeldahl puts it.

A photographer friend of mine, who also forages in appropriation, says that “photography asks us to hold still,” which is the opposite imperative of social media that demands we keep moving, gorging ourselves, snacking on images all day long. Prince’s use of these Instagram photos may indeed reek of indolence and even shamefulness, but the exhibit itself is also a rather provocative statement about social media and the broader devaluation of photography in the digital age. A good villain in any narrative usually tells us something about a flaw in the hero, and in this sense, the fuck-you-ness of Prince’s choice becomes something of a cautionary tale. It says, “You put these images someplace meaningless and forgettable, but I made them into art.” Peter Schjeldhal calls the series inevitable. If Prince hadn’t done it, somebody else would have, he insists.  And perhaps if a lesser-known artist had done it in some humble presentation, it would trend “cool” on social media. But it was Richard Fucking Prince, and he made a pile of money. And that seems to make all the difference in the world.

The Money (Why does it matter?)

First of all, I think it is important to offer a different perspective on a common theme running through much of the top-line criticism of the Instagram series. Because I think it’s technically misleading to say that this is a story about how a rich guy gets away with copyright infringement to the detriment of the little guy who cannot defend himself. The reality is that in order to sue someone for statutory damages due to infringement of a photograph, the original must be registered with the Copyright Office; and it is almost certain that none of the photographs Prince used (not to mention most of the images on Instagram) are registered. But if one photo were protected and its owner chose to litigate, the fact that Prince is wealthy would only make him a more attractive defendant, not a less attractive one.  It’s always better to sue people who actually have money, so it’s a bit counter-intuitive to suggest that Prince is shielded by his wealth; and it is more accurate to say that he’s shielded by the fact that the photos he used likely offer no path to pursue a claim.  (As a side note, Ellen Seidler at VoxIndie took this story as an example of why we need a Copyright Small Claims Court.)

So, having made that particular distinction about the role of money in this story, I’m still intrigued about its function from an emotional or cultural perspective. What if Prince put up the same show but didn’t sell any of the works?  Immediately, audiences and critics would be forced to judge the exhibit exclusively on its merits or lack thereof, and this might change opinions about it entirely.  Would all of the same people whose photos were stolen suddenly love the exhibit and be flattered because now the artistic statement is more pure, unsullied by commerce?  Certainly, that would be somewhat consistent with the “sharing economy” ethos borne of the digital age.  But a more apt metaphor for turning Instagram images into a physical gallery experience would be if Prince hosted the show for “free” by getting a sponsor to pay him a million bucks. The sponsor could even be Facebook! Would that change anyone’s feeling that Richard Prince is a thief?  If not, then I have to ask why it’s okay for Google, Facebook, Twitter, etc. to do almost exactly the same thing?

Of course another part of the narrative here in which money has a hand is the complaint that Richard Prince gets away with this because he’s Richard Prince.  True.  But welcome to the fine art world. It has always been a rarified environment in which the distinction between genius and charlatan is defined by the chaotic forces of intellect, ego, and wealth. Among those with the resources to pay a hundred thousand dollars for a print, one finds connoisseurs and posers — those who buy according to tastes they’ve developed for themselves, and those who buy according to tastes they’ve let others develop for them. This is nothing new. And this particular brand of commerce will always produce the classic antagonists of the academie and the refusé.   Good luck attempting to parse that. But the reality is that many buyers are investing, hoping their prints will appreciate in value regardless of any particular taste or connection to the work itself. And this means that, yes, Richard Prince gets away with selling his lazy-ass work for that kind of money simply because he is Richard Prince. It was ever thus. C’est la guerre.  Blaming Richard Prince for being Richard Prince is pointless. The question is how the money affects our judgment of him as an intellectual property thief.

Theft (Would this be fair use?)

Although I’ve stated the technical reason why Prince will almost certainly not be sued over any of the works in this collection, the Instagram series still raises the hypothetical question as to whether or not he might effectively make a strong fair use defense in an infringement case.  I’ll stick to my general rule of not offering an inexpert legal argument, especially regarding a case that will never happen.  That said, case law precedent, including Prince v Cariou itself, suggests that the courts could uphold a fair use defense for one of these works, though I certainly think that would be dismaying.  As stated in another post, I believe if fair use doctrine becomes a free-for-all, it ceases to have much meaning as a doctrine and as an important limitation on copyright.

What is interesting from a cultural perspective, though, is to consider the general sensibility about fairness in our times, regardless of any technical understanding of fair use doctrine.  The Internet industry likes to promote the idea of “expanding fair use” because this serves their business model at this time.  And millions of Internet users like the sound of this argument for what I believe are two reasons: the first is that they like the convenience of linking, embedding, copying and pasting without having to worry about infringement; and the second is that so much communication on the Web is produced without any expectation of revenue.

So, I suspect many people favor very broad applications of fair use doctrine as long as it at least appears as though nobody’s making any money.  But when we tell many of these same people, “Hey this wealthy dude just made bank by selling complete strangers’ Instagram pics,” many will say this sounds inherently unfair — as though some tech-age, social compact has been broken.  It’s as though there’s some unspoken rule that says we can steal all we like from one another as long as nobody makes money except the big site owners and the VCs.  There is hypocrisy in the attempt to straddle this particular fence because technically, Richard Prince has done nothing different than Instagram itself. And of course that’s why I think this exhibit that bridges the worlds of social media and traditional fine art is particularly interesting, especially because it’s rude.  Put another way, this exhibit is a manifestation of the kind of copyright paradigm many people are asking for. Creators who buy into the whole “democratization and sharing” narrative should realize it will always be a Richard Prince or a Mark Zuckerberg who will make the money.

I will comment on one of the four factors of fair use here because I believe it may allude to the heart of what many artists and even non-artists find so unfair about this Instagram series.  One of the factors weighed attempts to assess the extent to which a derivative work might threaten the market value of the original.  In this case, such harm could be substantial, particularly given the above statements about commercial value that is tied exclusively to the imprimatur of a famous, pop artist.  Imagine an unknown photographer is trying to break into the market, and along comes Richard Prince, who signs his name to one of this guy’s images and then sells it.  Not only would that be theft in the first place, but it could also render the original photo valueless now that there is a “Richard Prince” version of the same photo in the world.  And that is, at least metaphorically, what Prince has done with the photos in this Instagram series. Not only should that not be considered a fair use in a court of law, but I suspect that on the most instinctive level, it is the reason we are required to hate him.

On @POTUS this Memorial Day

As this Memorial Day marks the end of the week in which President Obama christened the @POTUS handle on Twitter; and the pundits and the halfwits have all weighed in, with observations from the former and racist threats from the latter; I thought I would repost one of the more thoughtful excerpts from former President Dwight D. Eisenhower’s “Cross of Iron” speech from 1956.  Probably no president spoke with more authority on the holistic cost of modern war.  Regardless of your own views on Eisenhower or his warnings against the military-industrial complex, I would ask if anyone thinks these words might inspire any greater introspection doled out 140 characters at a time across the frenetic threads of social media.

“Every gun that is made, every warship launched, every rocket fired signifies, in the final sense, a theft from those who hunger and are not fed, those who are cold and are not clothed. This world in arms is not spending money alone. It is spending the sweat of its laborers, the genius of its scientists, the hopes of its children. The cost of one modern heavy bomber is this: a modern brick school in more than 30 cities. It is two electric power plants, each serving a town of 60,000 population. It is two fine, fully equipped hospitals. It is some fifty miles of concrete pavement. We pay for a single fighter plane with a half million bushels of wheat. We pay for a single destroyer with new homes that could have housed more than 8,000 people. This is, I repeat, the best way of life to be found on the road the world has been taking. This is not a way of life at all, in any true sense. Under the cloud of threatening war, it is humanity hanging from a cross of iron….Is there no other way the world may live?”   – Dwight D. Eisenhower –

There’s nothing particularly wrong with @POTUS on Twitter, and the platform itself is a fine vehicle for distributing links to material worthy of our time and contemplation.  But let’s not ask too much of the individual tweets by any president. At the end of the day, they’re just sound bites that don’t even leave room for grammar.

Is Transparency Even Possible Anymore?

The other day, a meme was haunting my Facebook feed with a photo of Senator Elizabeth Warren and a quote attributed to her saying that the TPP negotiations are too secretive, even beyond the scrutiny of Congress.  Now, I really like Senator Warren, and she’s one of the few pols who is likely to earn the benefit of my doubt.  And assuming the quote is accurately attributed, I’m open to the idea that this unprecedentedly large and complex trade agreement is being negotiated in an unprecedentedly secretive manner, though that may not be the case.  As stated in earlier posts on this subject, trade negotiations are historically pretty close-vested affairs out of necessity; it’s either that or no trade deals at all.  But setting that specific debate aside, whether it’s the TPP or any number of other initiatives meant to be conducted by elected and appointed representatives, I have to wonder about the prospect of an effective measure of transparency in the digital age.  After all, even today, it’s still newsmakers who shape public opinion. But who are the newsmakers?

Let’s imagine for the moment that the daily doings of the TPP were made publicly available in real time, at least in the U.S.  Based on comparable data measuring political involvement, let’s assume that 50% of Americans will not only not care, but would say, “The TP-what?” if asked for an opinion.  And let’s go crazy and say that a full 20% of Americans would get so involved that they watch the negotiations like sports fans, parsing all the language, arguing about it on social media, and making a real hobby out of Tradespotting.  Setting aside whatever we might assume about individuals who have this kind of time on their hands, the odds are quite high that these most ardent Tradespotters are also going to be the most entrenched in their views, predisposed to dislike global trade agreements, but all for different reasons.  Because the people who fit that description includes a pretty diverse range — from NGOs who seriously study global economics and real matters of social justice to anarchists who don’t know anything, but really like to show up at WTO summits and set stuff on fire.  In either case, this category of watchdogs is likely too small collectively to have much political influence and too fragmented as a segment to represent a collective in the first place.

So, that would leave 40% of us who care about a deal like the TPP but cannot possibly spend our days scrutinizing, let alone understanding, the fungible details of a multi-lateral trade agreement.  Still, we like transparency, we’ll call ourselves open to all sides, and we are a big enough, engaged enough population to have political influence on our representatives.  Historically, I think it’s a pretty fair portrayal of the engaged American citizen to describe him as someone who cannot engage first-hand with every issue but who looks to experts — journalists, trusted elected representatives, experienced analysts, etc.  And this is where I believe the proverbial wheels have come off in the digital age.  Because not only have many of the traditional information filters lost credibility (in some cases deservedly so) in our digitized times, but they are also often outnumbered and outspent by commercial entities that are in a position to buy public opinion on trade or any other issue in which they have a vested interest.

I’ve accused organizations like the EFF of scare-mongering on behalf of the Internet and electronics industries with regard to the intellectual property components of the TPP. Agree with that example or not, what I think is important is that The Koch Brothers, the pharmaceutical industry, the bankers, or any other powerful interest can all avail themselves of the same, low-cost, manipulative tools that can sway public opinion either for or against a particular initiative. And against is always easier.

On social media manipulation can look an awful lot like transparency when it is in fact corporate PR disguised as public advocacy. Because you’ll likely never see a meme or an article with the headline “Pfizer says XYZ trade deal will make the world a better place.”  Instead, you’ll see The Global Outreach Center for the Benefit of Mankind and Kittens says, “XYZ  trade deal will make the world a better place.”  And lo, it turns out The GOCBMK just happens to be funded by the pharmaceutical industry.  So, for us 40% of Americans who try to be engaged in the traditional manner of seeking wisdom from middle-man sources, and who now get most of our leads from social media, it is entirely possible that we are looking through much more opaque filters than we were 20 years ago.

Sticking with the example of trade agreements, these are initiatives that naturally affect hundreds or thousands of business interests.  So, if we were to make the language of ongoing negotiations publicly available, it’s the wealthiest corporate interests that have both the time and the resources to launch social media campaigns designed to scare people about whatever it is they might want to kill in the deal.  That kind of PR is not new, but it is cheaper,  faster, and potentially more effective in a climate that has devalued and fragmented the authority of traditional, disinterested commentary. So, one unintended consequence of seeking greater transparency in our times is that the information, which sill won’t be accessed by most citizens, does provide free grist for the PR mill of any vested interest that wants to manipulate that information.

So where do we net out? With something like trade agreements, I’m betting we wind up more or less where we started.  We elect a president, and whoever he or she is appoints trade representatives to negotiate treaties that have to be ratified by Congress.   We hope these deals do more good than harm, knowing full well that any two Americans will likely disagree on the definitions of good and harm.  As it ever was, we remain as good or bad as the people we elect and appoint. Meanwhile, what seems different today is this notion that digitized transparency cuts out the middle-man, but I believe this is illusory.  More typically, I think social media platforms create a kind of power vacuum in which sober, expert voices are often drowned out by the circus of new middle men who know how to dazzle or frighten an audience.

This is a particularly acute matter to consider this week as we watch some of the major news organizations enter into the Instant Articles deal with Facebook. In this new arrangement, readers will no longer have to leave the walled garden of Facebook to read the full text of a piece produced by, for example, The New York Times.  That’s convenient for the reader, but as writer Chris Cillizza points out in this piece for The Washington Post, such arrangements radically alter the relationship between the content of journalism and the advertising that supports it.  The traditional disconnect between advertisers in a newspaper and any individual story in that paper is conducive to the overall integrity of the many stories being published.  But when individual stories are each valued by their popularity and advertised against by specific sponsors, this changes the relationship and brings sponsor and “news” closer than ever.  “And what does that reality mean if the long-term business model of Instant Articles for media companies is centered primarily around sponsored content?” asks Cillizza.  Good question.  To me, the answer doesn’t sound like it leads to greater transparency about anything.