San Francisco, August 7, 1937. A midsummer day like so many others—a blanket of fog above the bay, the air warming as the sun lazily filters through and burns it off, teasing brightness from the city’s glittering new symbol, the Golden Gate Bridge. It was a Saturday, a day off for most, to relax, see friends or family, maybe picnic in the park, or, as many would choose to do, indulge in a new and thrilling pastime—walk across the bridge and take in the magnificent view. From one side, the city rose against the bay. From the other, the horizon of the Pacific spread out as far as the eye could see. Much more than a remarkable feat of engineering and a source of great pride for the city and for the country, the bridge was a gateway, named for the strait which it spanned, and as imposing and graceful an embodiment of the promise of California and the golden West as had ever been seen.

While there are beautiful bridges all over the world, the Golden Gate looms in the collective imagination, a stunning structure set within an equally magnificent landscape. In America, New York and the Atlantic can be thought to look back, forever bound to the customs of England, Europe, and the past. San Francisco and the Pacific, however, represent a greater unknown and a sense of freedom, connected to nature and Eastern thought, to the cycle of life and eternity. Traveling the country from east to west, one might end up in a San Francisco park named Land’s End. Set high above a rocky coast, it offers an unparalleled view of the ocean and the Golden Gate from its wild, windswept cliffs. In 1937, against a backdrop of seismic world events—from murderous purges in the Soviet Union to the Spanish Civil War and Japan’s invasion of China—the bridge would also symbolize the heights to which humans could aspire. Built in the midst of the Great Depression—a convulsive period of economic crisis, increasingly nationalistic aggression, and lingering resentments from the First World War that served as the ominous prelude to the second—it is one of the lasting achievements of its time. Unhealed wounds, of course, are not only the burden of the vanquished but of the victor, and even among the victorious there are those who remain deeply traumatized, are resigned to emotional defeat and forgotten. Do we memorialize those who are haunted in this way, or are there only memorials by default?     

On that summer day 75 years ago, a man named Harold Wobber was walking across the bridge. Along the way he encountered Dr. Louis Naylor, a college professor from Connecticut who had come to San Francisco on vacation. A conversation was struck up between the two men, and they continued on together. At about the midpoint of the bridge, Wobber came to a stop, took off his jacket and vest, and reportedly said, “This is where I get off.” As he hopped the railing, Naylor attempted to take hold of his belt, but Wobber was able to break free and leapt from the bridge, its first recorded suicide. This is the man’s claim to fame, such as it is, and though not much more is known about him, what little information is available is telling.

These ramblings pick up from the previous column, which commented on the recent case against Richard Prince, who was sued for copyright infringement by the photographer Patrick Cariou. The presiding judge, Deborah A. Batts, sided with the plaintiff, and the case is now on appeal. Since some curious “evidence” has come to light, with no small bearing on the case, a brief follow-up seems in order. While “evidence” may not be entirely appropriate to describe this new discovery, is coincidence any more accurate? As always, you’ll have to judge for yourself, but here goes.

In the early summer of 2009, the writer J.D. Salinger, most famous for his novel, The Catcher In the Rye, and just as well-known for being a recluse who refused to publish any writing in the last 45 years of his life, prevailed in his suit against a Swedish writer for copyright infringement. The author, Fredrik Colting, had produced a book he titled 60 Years Later: Coming Through the Rye, using the literary alias John David California. The book was published in England, but the ruling effectively blocked its subsequent appearance in the United States. In Colting’s version of the story, he advances characters from The Catcher well beyond the temporal frame of the original novel, set in a future where its once youthful protagonist, Holden Caulfield, is now well over 70 years old, and referred to as “Mr. C.” Despite transforming the character from a young to an elderly man, Colting identifies him as the invention of Salinger, though at a distant point in his life, something which Salinger himself never attempted. Even using a pen name, Colting in no way intended to deceive anyone who might purchase the book, thinking it was a sequel that might in fact have been written by Salinger.

What, if anything, does this have to do with the case against Richard Prince? Well, as it so happens, the judge in the Salinger case was the same judge in Cariou vs. Prince: Deborah A. Batts, of the U.S. District Court in Manhattan. In her ruling against Colting, as reported in the New York Times of July 1, 2009, the judge was firm, insisting “… it can be argued that the contrast between Holden’s authentic but critical and rebellious nature and his tendency toward depressive alienation is one of the key themes of Catcher. It is hardly parodic to repeat that same exercise in contrast, just because society and the characters have aged¹. To begin a counter-argument, why exactly is it that a work has to satisfy a definition of parody to be considered transformative? Is the artist who reinterprets or reexamines the work of another only protected from the law if they can be dismissed as a parrot, and a mocking one at that? This is simply unreasonable. The only travesty would appear to be on the part of the law itself. Artists can’t always be called upon to add a mustache to theMona Lisa. Now let’s think about that “just because” for a moment: “just because society and the characters have aged.” If the span of 60 years is not enough time to have passed for our view of the world to be re-imagined in an entirely new way through the lens of a familiar literary character, then how long do we have to wait? More than half a century is not an insignificant amount of time to have elapsed. It seems a marvel that Salinger himself was yet in this world, but there he was, at the age of 90, suing someone for writing a book that he hadn’t, or couldn’t, or simply didn’t care to². This was his prerogative, and maybe this sort of annoyance kept him alive, gave him something to occupy his mind. If Salinger hadn’t forfeited his intellectual property rights legally, then maybe they had been surrendered intellectually. In The Catcher, its author ardently hopes for things to stay the same, to remain in place, just as they have always been. This yearning is in a sense an expression of something already lost. By the end of the novel, Holden Caulfield hasn’t appreciably matured. Perhaps, as some parents may feel towards their children, Salinger never wanted Holden to grow up. This we will never know. Holden was more than a character to his creator. Salinger identified with him and to some extent believed that he existed. When a proposal to turn the book into a Broadway play was once put forth, the author said he would consider the possibility, but only on the condition that he played the lead part. Subsequently refusing the offer, Salinger insisted, “I cannot give my permission,” and added, with genuine or mock trepidation: “I fear Holden wouldn’t like it.” Life goes on, whether we want it to or not. Salinger passed away about five months after the suit was heard. A once censored book, perversely enough, was made to censor another. And what of Judge Batts? Having gone on to preside over the Prince case we might wonder if she is, how shall we put this, less than receptive to works of art and literature which quote from and expand upon others that came before? Does she think it’s stealing? Does she always think it’s stealing?

Back to The Catcher.

Often in cases involving copyright infringement the argument is made that someone has been deprived of their living, of their creation, by someone who has usurped their work. (Even when more than 65 million copies of a book have been sold.) And yet for Salinger, who hadn’t published anything in decades, The Catcher wasn’t exactly a Harry Potter franchise. There were no sequels, no movies—despite intense interest, from Marlon Brando and Jerry Lewis to Steven Spielberg and Harvey Weinstein (such is the passage from old Hollywood to new). J.K. Rowling was herself no stranger to unwanted advances, as she fended off accusations that parts of her stories were thematically derivative of those of other writers. Happily, she wielded a heavy sword backed by billions of corporate pounds, and her would-be snatchers and dementors were dispatched as if by a magic spell. But for all of Rowling’s productivity over the course of seven installments, a story milked more than the only cow in the barn, compared to Salinger’s one perfect book, it’s clear that as far as literary consequence is concerned, J.K. is no J.D. At the time of his death in 2010, Salinger hadn’t set any new books on the shelves since 1965. That year, Richard Prince would have been 16—the same age as Holden Caulfield—and Judge Batts would have been 18. They might well have read the book as teenagers, and it may even have an important place in their lives, as it does for others. George H.W. Bush claims to have been greatly inspired by the book, and it tragically bedeviled Mark David Chapman³. Maybe this book isn’t truly owned by one person, but belongs to everyone—for better and for worse. This, of course, is the public domain, albeit understood in terms of its emotional resonance. The Catcher In The Rye is one of the great American books of all time, and it’s certainly worth reading again. Which brings us back to Prince, and also to the idea of “catch as catch can.” While the exact origin of the phrase is open to debate, it’s generally considered to mean: inventing something, or finding a solution to something, with whatever’s at hand.

Consider a recent, somewhat elusive work by Richard Prince, his facsimile version of the first edition of J.D. Salinger’s The Catcher In The Rye. Although the two books physically appear the same, having identical cover artwork, with both Salinger’s and Prince’s being dedicated “To My Mother,” there are a number of differences between them, most obviously the author’s attribution. Rather than “a novel by J.D. Salinger,” we see: “a novel by Richard Prince.” Is this a comment after-the-fact on these cases, presided over by the same judge? Or just one of life’s great coincidences? In its one-on-one relationship with an original, this work is classic Prince, as good as anything he’s ever come up with. A doppelgänger, an object of his affection? Apparently Prince considers his version of The Catcher to be a sculpture, a work of art. On the back flap of the dust jacket there is an author’s note in which he is quoted as saying, “I worked on The Catcher In The Rye, on and off, for ten years.” Opposite the dedication page, © Richard Prince is printed, and there is a notable disclaimer: “This is an artwork by Richard Prince. Any similarity to a book is coincidental and not intended by the artist.” Judge Batts, of course, may be in some disagreement. But would it really come as any great surprise? J.D. Salinger, for his part, doesn’t know and doesn’t care. Alienation—the estrangement between the self and the world—will always be with us. And there is no greater estrangement than leaving this world. Intellectual property rights don’t expire with the person, and The Catcher In The Rye will live on after Salinger, as all great literature and art does, though perhaps in ways he never expected. “People,” after all, “are always ruining things for you”⁴.

Notes

1. Sewell Chan, “Judge Rules for J.D. Salinger in ‘Catcher’ Copyright Suit,” New York Times, July 1, 2009.

2. The suit was settled with the Salinger Estate just over a year ago. While Colting may not publish his book in the United States or Canada, once The Catcher in the Rye enters public domain he is free to do so. This will be in 2046. In the meantime he is allowed to distribute and sell the book outside of North America. He also agreed to the removal of Coming Through the Rye in his title.

3. On Dec. 8, 1980, when Mark David Chapman shot and killed John Lennon in New York, he had with him a worn copy of The Catcher In The Rye, inside of which he had written, “Dear Holden Caulfield, From Holden Caulfield, This is my statement.” He was reading from the book when the police arrived on the scene, and his obsession with the book was cited by his defense when he was on trial for the murder.

4. Richard Prince, The Catcher In The Rye, American Place, New York, p.114.

Previously - Richard Prince Vibration, Yeah!

KOMP-

LAINT

DEPT. - RICHARD PRINCE VIBRATION, YEAH!

Is there anything worse than being sued? How about being sued and losing. No, even worse than that. What about never having the chance to sue someone? Exactly. Because the way it used to be, the worst that could happen was that someone took your work away from you, and then profited at your expense. Nowadays, if your career could use a real boost, you can’t ask for a more golden opportunity than the chance to take someone to court. Case in point, the artist Richard Prince recently being sued by the commercial photographer Patrick Cariou. This has been well-covered in both the art and general press, dealing as it does with the hot topic of fair use, and yet the story deserves further examination if only to raise a larger issue, the very competence, or its lack thereof, on the part of the judges who preside over suits involving contemporary art. When artwork that is appropriative in nature is under review, we are compelled to question whether the judiciary may be biased towards artists they don’t consider to actually be making art. In particular, artists who don’t seem to create “original” images that reflect the way the world appears, but steal images and reduce them to the realms of the unreal. What if judges favor positive representations to the exclusion, or denial, of most others? We’re a long way from Norman Rockwell and the Saturday Evening Post, but where some people’s ideas of “real art” are concerned we haven’t traveled all that far.

Let’s face it, a photograph of a photograph—a Marlboro ad but without the cigarettes and the logo—is still an affront to most armchair critics. And everyone has an opinion, even a judge. More troubling is the possibility that among those who decide these cases, there may be some who are biased against the way that an artist such as Richard Prince operates, and for which he is celebrated and enriched. What if they’re thinking as they preside on the bench: “Millions and millions of dollars? And someone else did all the work? Who do these artist think they are, royalty?” When fair use is on trial, how fair is the ruling when, rather than the law being applied to a case before the court, an admonishment is leveled for a perceived injustice on the part of offending images and their makers?

It seems that a number of Prince’s collages and paintings for his 2008 Canal Zone series are based on images created by someone else. No big surprise for an artist who rose to prominence by taking photographs of photographs, and went on to become one of the most influential visual artists of his generation for doing so. The photos in question, which he collaged and transformed for Canal Zone, were taken by Patrick Cariou and reproduced in his book, Yes Rasta (2000). If you are among those who hadn’t heard of Patrick Cariou until he sued Richard Prince, well, you certainly aren’t alone. Maybe the name’s not ringing many bells for readers right now. Maybe your subscriptions to Marie Claire, GQ, Condé Nast Traveler, Vogue Hommes, and Elle magazine—the Australian and French versions—have somehow lapsed. No matter. These are among the commercial publications where Cariou’s photos have appeared over the years, magazines which cater mostly to people interested in fashion and travel, in other words, to well-dressed tourists. In addition to Yes Rasta, Cariou has a book that brings together his photos of surfers, which he titled with brilliant economy and an unassuming originality, Surfers (1997). Or maybe taking pictures—and are model release forms by any chance available for review?—of Rastas in Jamaica in the late 90s or surfers on beaches around the world doesn’t seem all that au courant, not when other photographers have been there long before. Cariou’s most recent book, Gypsies (2010), is at least a bit more timely, what with France’s very own Sylvester Stallone, President Nicolas Sarkozy, having deported thousands of Roma in the desperate hope of reclaiming the votes of nearly three million unemployed French workers. He has, what, about the same odds as a Gypsy being elected? Or a better chance of landing a bit part in a new Woody Allen movie.

The blurb for Cariou’s book describes him as “a self-taught anthropologist,” and identifies him as an artist who “harbors a lifelong, passionate fascination with outlaws and renegades.” Or so it says on Amazon, where copies of Gypsies are priced at $34 and change. You have to wonder: do Rastas see themselves as renegades and outlaws? Do surfers in Tahiti? How about gypsies? And artists for that matter? What about photographers who work for Conde Nast Traveler? Does Patrick Cariou consider himself to be a renegade or an outlaw? Maybe he identifies with his image of his subjects. Or is he, like a lot of people, happy to have the law on his side when it suits him? What’s the word for hypocrite in French? Oh, right, it’s the same word. Nothing lost in translation there. So Cariou photographs surfers and Rastas and Roma gypsies. That makes him a romantic, a little behind the times where Endless Summer and the hills of Jamaica are concerned, but in that tradition, more or less. Richard Prince is a romantic as well, of a much different sort of course, not squaring with commonly received notions of same. Prince once memorably remarked, “Oceans without surfers, cowboys without Marlboros … Even though I’m aware of the classicism of the images. I seem to go after images that I don’t quite believe. And I try to re-present them even more unbelievably.”1 But then Prince has spent much of his career confounding all sorts of long-held beliefs, the very system of faith in an image as it applies to the photographic. It’s why his contribution is important and of value to the culture. Cariou happily makes pictures that a lot of other people have made before. Is this “anthropology” without apology? Most likely the only new ground that Cariou has broken of late was walking into a Manhattan courtroom.

Patrick Cariou, from Yes Rasta

Leni Riefenstahl, from Nuba

Whatever you think of a French photographer—even one based in New York—taking the pictures that he does, you might say, “At least Cariou got off his ass and went somewhere, with an actual camera, and took his own photos. Made an effort. Showed that he wasn’t afraid of a hard day’s work, and would venture pretty far outside the comfort zone that most fine artists prefer to stay inside. Not like Prince, who just appropriates images.” Cariou’s project might remind you of another heroic effort from another time—that of Leni Riefenstahl, who went all the way to Africa to document the Nuba tribes in Sudan. She was already in her 60s when she first visited the continent, making numerous trips and continuing to work there into her 70s, at times living alongside the Nuba. And the pictures are amazing. That certainly didn’t stop Susan Sontag from criticizing the photos for their “Fascist esthetic,” but then there’s no appeasement for injustice collectors, and ingratiation is usually its own reward—not to mention that Riefenstahl’s accomplishment doesn’t even come close to that of Annie Liebovitz. As we consider photographs of the Nuba in the Sudan or Rastas in Jamaica, we acknowledge the not uncomplicated history of artists documenting indigenous cultures, bringing their work back to “the first world,” publishing pictures in coffee table books, framing them, hanging them on gallery walls, and offering them for sale. Cariou’s photographs certainly have artistic merit. For all his presence on glossy magazine pages, and relative absence in galleries exhibiting contemporary art, he is still an artist. But what of the social and anthropological import of his work? If he had simply thought that Rastas were “cool” he could much more easily have photographed them on the streets of Paris and New York. Like another itinerant French artist, Paul Gaugin before him, Cariou rejected the conventions and propriety of Europe and went to the source, beyond the long arm of civilization and the law. Maybe he was on a romantic quest, in search of something truly authentic in such a plastic world. From this point of view, and perhaps from the bench, when he is up against an artist like Prince he is viewed as an underdog. And most of us want to take the side of the underdog. Cariou vs. Prince will inevitably bring to mind one of Jimmy Cliff’s greatest lines, “The harder they come, the harder they fall.”

U.S. District Court Judge Deborah A. Batts

And what about the judge in Patrick Cariou’s case against Richard Prince? This would be Deborah A. Batts of the U.S. District Court. There’s a photograph of Judge Batts online, taken in 2002, posing proudly next to her painted portrait, set on an easel, and commissioned by her alma mater, the Harvard Law School. We don’t know who the artist is, but he or she seems to have rendered a fairly good likeness, and the picture is in what most people would say is a handsome frame. In the way that Judge Batts is positioned on the chair, the artist has made it appear that although she’s somehow holding still, there is at the same time a slight swivel upwards. It doesn’t look like a totally natural position. Luckily her flowing dark robes cover up whatever flaws might have been even more noticeable in the painted pose. But the artist clearly had difficulty setting her properly on the chair, or maybe the judge was tired from posing for a long while. Unless the painting was made from a photograph. Then you notice the hands in the painting, the way they’re held. This isn’t a comment on the physiognomy of the subject, more the awkwardness with which the artist has placed them. The judge is holding a pen in her left hand, and it looks a bit crimped. In her right hand she’s holding a piece of paper, except her fingers don’t actually grasp the paper. It’s just there. You can do things like that with paint, make an object float all on its own. Most artists have a difficult time painting and drawing hands. It’s not uncommon. Anyway, Judge Batts is smiling in the painting just as she’s smiling in this photo. There’s a man standing on the other side of the painting, Law School Dean Robert C. Clark, a bit flat in his posture. There’s an old painting on the wall directly behind him, in a gilt frame, of a man wearing an elaborate powdered wig. This might be one of the founders of the school. If you think about it, there are hundreds of years in this photo of Judge Batts and Dean Clark, even though it was taken in a split second. The world of contemporary art may not be the domain of Judge Batts, nor of any judge who hears a case where contemporary art and copyright infringement come head-to-head, but she is obviously happy about this particular painting, and she should be very proud in the moment. We have to get past the painter’s talents, such as they are, because what this picture really represents is so much more important in every way.

Richard Prince, from Canal Zone

When Judge Batts looked at Richard Prince’s pictures, what did she see? We can only imagine what might have crossed her mind. Was she shown, for example, images in which Rastas appear to have been defaced, or were collaged into pictures with naked young women? What Prince has done in his collages might well be perceived as demeaning in terms of people of color and women—even if you’re neither. Admittedly, there is much in Prince’s alterations to the original images that can be perceived as juvenile, a bit teenage perhaps, something you might find amid the restless apathy of a junior high school class. It was probably Andy Warhol who once said something about how boredom becomes fascination if you stay with it long enough, and, for better or worse, this may apply to Richard Prince. Meanwhile, the pair of Rastas in the background of the picture reproduced here are staring none too discretely at the bare asses of two surfer girls. This is just one example of how Prince has repeated figures from one image, scaled them down, repeated figures from yet another, recombined them within an altered figure/ground relationship, defaced them, and then, as the French will say, voila!, a new picture was born, one that had never existed before. Artists like Richard Prince are very clever in this way. It’s called collage, and many artists have been doing it for hundreds of years now. Cutting pictures out of books and newspapers and magazines, pasting them down in different, sometimes absurd and offensive configurations. Even if it’s meant to be precocious, there’s quite a bit of it—the masterworks, of course—right here at New York’s Museum of Modern Art. Filmmakers avail themselves of collage, as do many musicians. You see and hear it a lot these days. It’s pervasive. It’s everywhere. The real problem with art and the law today, as this case proves, is not only that judges interpret a law that is out of date, but that they may not be fully fluent in terms of interpreting the art of the matter. Just think of how dangerous it is to repair a plane with old parts, and then have the work supervised by someone who doesn’t actually understand how the aircraft flies. Add in the fact that Richard Prince is a kind of “barnstormer” in the art world. While successful artists usually prefer to play it safe, Prince, with the passage of time, has taken greater as opposed to fewer chances. At the risk of making him sound as if he’s something of an aviation hero—after all, he’s human, too—neither is he the villain some would make him out to be.

This case is certainly not about money, even if in this culture everything revolves around the almighty dollar. Who among us can’t see that Patrick Cariou has profited from the Richard Prince case, not least for the attention he wouldn’t have otherwise received, more in the past year than in the last ten. Where was his career before all of this? That’s a good question. The man doesn’t even have a Wikipedia page. Even Mr. Ed has a Wikipedia page. You know, Mr. Ed, “the talking horse.” If something stinks in the stable, it’s Patrick Cariou claiming that Richard Prince’s pictures deprived him of a living, of financial gain, of attention and sales. You have to wonder how many copies of Yes Rasta were sold before this case came to trial, and how many more have subsequently been sold? How many of his photos have collectors and dealers recently acquired? Patrick Cariou should be thanking Richard Prince, not taking him to court. And a final thought, what about the people in these Rasta photos, and what about the Gypsies, do they in any way profit from the sale of Cariou’s work?

At this point you must be asking yourself, “Hey, wait a minute. Who’s on trial here?” The answer to that is simple enough. You, me, and everyone we know. Richard Prince, Patrick Cariou, the judge and the law. Especially the law if it’s ill-equipped for these times, or if it’s applied in a narrow-minded way. Why Richard Prince didn’t defend himself more vigorously in court is a mystery to many of us. Because the case wasn’t only against him and his funny pictures, by which some people can not be much amused. It was against us all. This kind of art has its history, and it’s future will not be denied. It will have its day in court. And the culture will evolve even if the art appears to have devolved. You may not like this approach to picture-making, or the way old songs are cut up, reassembled and performed, but you cannot say that the original has not been transformed. There is also a double bind to consider: most educated people don’t want to appear ignorant about art, and yet they don’t want to be seen having the proverbial wool pulled over their eyes. The fact that today’s art is probably misunderstood and disliked in most courts of law is actually a hopeful sign. It means that we are moving forward, slowly but surely. In art and music as in nature, every river has its source, and there are many rivers to cross.


1. Marvin Heiferman, “Richard Prince,” BOMB Magazine, Summer, 1988.

Previously - If Christian Marclay Could Put Time in a Bottle (If Words Could Make Wishes Come True)