As transformed by Prince, the five original Carious are not documentation of Rastas or even “photographs” in themselves, but become tokens in a game “Spot the Art” that Duchamp’s urinal brought to market in the teenage years of the last century. Prince underlines how images live in different cultural drawers – for example as “illustration”, “documentation” or “art” – and shows how appropriation can unsettle us by being moved from one drawer to another.
In the track titled “Graduation,” one of five pieces that the court found not transformative enough in 2013, when Prince takes an electric guitar from another source and puts it in the hands of one of Carious Rastafarians, he says not really much about Rastafarians or rock music or guitars. It says something about the power that artists have had since Warhol to mix and match images across cultural boundaries.
While in the 25 works the dish was viewed as transformative – where Prince had a lot to do with the look of Carious photos – the original images are just raw material for a collage result that went in a completely different aesthetic direction, but that’s why It Was a very old, trivial gesture when it came to larger art issues. To be honest, collage a Rasta head onto a nude is the kind of thing you can see in a high school art class. The “transformation” that Prince brought about in these works did not lead to any new kind of creativity worthy of the name.
The concept of “transformation” has been driving lawyers and judges insane since the Supreme Court introduced it in one case in 1993. It turns out that it is extremely difficult to find out when and how function, meaning and message in a culture change – what for art is exactly how it should be. Art is about finding new ways to solve these very problems. The problem is imagining that courts could ever try to make strict rules for them.
After Christopher Sprigman, a lawyer and professor who teaches intellectual property at New York University, worked through all of the options with me, he almost threw up his hands: Copyright, he said, “is often very clever, but not very profound – and art is just the opposite. When the two things collide, you run into problems. “
Under current law, Sprigman said, almost all fair use decisions, or at least all tricky decisions, inevitably involve some sort of “aesthetic theory” – the kind of “theory” where a court decides that collage is the way an artist should go. And in aesthetic theory, to say the least, there are no judges with the greatest expertise. People like to quote the words of the great Supreme Court Justice Oliver Wendell Holmes: “It would be a dangerous endeavor for those only trained by the law to make themselves final judges of the value of pictorial illustration.”