During a recent argument about copyright law and its alleged negative impact on appropriation art in the United States, a friend asked me if I thought Chinese artists would feel similarly constrained by American copyright law. I thought this was a particularly dumb question to ask given that, in general, I don’t think China gives two hoots about American intellectual-property law or, for that matter, US laws in general. I would not fault you, the reader, for questioning the intelligence of my friends or for advising me to seek out smarter ones. However, in my defense, I would remind you that, as any good teacher will tell you, there is no such thing as a dumb question. A dumb person perhaps, but not a dumb question.
I realized that what my friend was really asking was whether the US cared about its own application and enforcement of its laws, and how its approach to enforcement was viewed by the rest of the world. Edward Snowden’s recent revelations regarding the US National Security Agency eavesdropping on American citizens—and on half of this planet—makes this an obvious and pertinent question. What is not so immediately apparent is how a recent US copyright decision, Cariou v. Prince, also reveals quite a bit about contemporary American values and, sadly, the pretensions of the American legal system.
If you’re like me, the last place you would look for an answer to these questions would be the sardonic yet poignant writings of Chuck Klosterman. What could Pamela Anderson’s bosom, Joe DiMaggio’s athletic ability and the 2002 NBA playoffs possibly tell us about the American judicial mind-set?
But, before we get to that, I want to give a brief overview of the copyright case I am referencing, Cariou v. Prince. The lower-court case was initially and overwhelmingly decided in favor of the artist Patrick Cariou, establishing that in order for appropriated material to constitute fair use, it must critically reference the appropriated content. That decision was appealed by Richard Prince. This past April, the Second Circuit Court of Appeals pretty much vacated the lower court’s ruling and single-handedly decided that 25 out of 30 paintings Prince created from images made by and copyrighted to Cariou were, as a matter of law, fair use.
Why did the appellate court’s decision differ so wildly from the lower court’s decision? There are quite a few reasons (most having little to do with complex legal analysis), but the one I want to focus on is the appellate court’s obsession with celebrity culture. During oral arguments, and in their written opinions, the three appellate judges seemed fascinated by Prince’s “wealthy and famous” collector base, citing how his dinner parties included luminaries such as Jay-Z, Beyoncé Knowles, Jeff Koons, Anna Wintour, Brad Pitt and Angelina Jolie. Judge Barrington D. Parker exhibited his analytical prowess during oral arguments: “Cariou’s audience attends Yankees’ baseball games,” while Prince’s attends “the Met” (alluding to New York’s cultural apex, the Metropolitan Museum of Art). “Prince’s audience resides in Manhattan,” Judge Parker added, “while Cariou’s resides across the river, in Brooklyn.”
Every now and then I crave reading material that doesn’t contain mind-numbing and archaic terminology such as “Foucauldian,” “capitalist” and “phallocentric.” I seek these texts because, sometimes, just sometimes, there are simpler ways of making observations. In Sex, Drugs, and Cocoa Puffs, published in 2003, Klosterman—with ample amounts of wit—succinctly dissects the state of American culture and values. Klosterman argues that, although Marilyn Monroe and Pamela Anderson couldn’t be more different—Monroe being a sex symbol and Anderson being about nothing but sex—what makes them alike is that Anderson tells “us” (Americans) as much about ourselves as Monroe tells us about our parents’ generation. Men in the 1950s wanted Monroe because she made love to the men they respected and wanted to be (JFK, Arthur Miller, Joe DiMaggio . . . ), but “modern men want Anderson because she makes love to the concept of celebrity.”
There’s no way Anderson could date a Joe DiMaggio, Klosterman points out—DiMaggio was the greatest baseball player of his day, embodying what was noble and beautiful about the game (he was classically “great” on the field, and his rags-to-riches story defined what Americans claimed to love about democracy). On the contrary, Klosterman adds, Anderson’s greatest love, rock star Tommy Lee, is famous for being famous, not having had a hit album since 1989. (Incidentally, the same can be said of Richard Prince; his latest hits happened sometime during the Reagan administration.)
Today’s DiMaggio, Michael Jordan, could never date Pamela Anderson, Klosterman argues, because in “the eyes of people who obsess over celebrities . . . Jordan would be dating a slut.” For Klosterman, Jordan “can’t be the hero to an eight-year-old boy in Duluth and the paramour to a 107-pound public orgasmatron.” Similarly, unless you want to be the judicial version of Dennis Rodman, you can’t be a federal judge and roll in the hay with celebrities and commodity culture. You can, however, act like a judge and resist the temptation to be like Pamela Anderson and thus “socially obligated to deliver [your] most intimate gifts to those who represent contemporary America.”
You might argue that the Michael Jordan example is outdated, but that would just lend credibility to my argument that we no longer exist in a noble and beautiful world; rather, we exist in a world inhabited by the concept of celebrity. You might also think that I’m all sour grapes; that I’m upset that Cariou didn’t prevail. You would be wrong. It’s about the methods used by the Court to obtain a ridiculous and dishonest outcome. I can live with the score so long as the referees act with impartiality. What I can’t live with, and where I depart from Klosterman, is state-sponsored cheating. I don’t want to assume that basketball, or any sport, is always fixed. I don’t want to concede that certain marquee players or celebrities are going to get preferential treatment for no valid reason. I want to believe that, unlike basketball, there are no faceless puppet masters pulling strings and manipulating the purity of justice.
I know life isn’t fair. And that belief stands when the person in front of me buys the last ticket to a sold-out show. But I really don’t want to think that law, like sports, is always rigged, and consequently, that that is why the American judiciary is becoming exactly like American culture.