Yet all this attention being given to his methods rather than the content of those images he is so often accused of stealing conceals the rather inconvenient fact that his best work issues a daring set of challenges to our understanding of photography as a social currency. In dealing variously with cowboys, girlfriends and celebrities Prince reaches into the most profound archetypes of American culture, seeing how the proliferation of such images, their endless reproduction, effects how we might build a particular vision of ourselves - and how that vision inevitably becomes a commodity understood in photographic terms.

Needless to say, once you talk about physical objects - as I did - people will inevitably say that of course taking a physical object is not the same as taking something intangible, in particular since intangible stuff often can be reproduced in an infinite number without taking away anything from the original (in fact the idea of an "original" even is flawed). Donn Zaretsky went straight for it and asked:

What if, after I took your wallet, you still had your wallet?

This had Sérgio Muñoz Sarmiento respond:

The rabbit in the hat to this argument is this. If I photocopy or rephotograph a copyrighted image exactly as it is, or with little to no transformative change, and use it to make paintings, t-shirts, mugs, postcards, or heck, even three-dimensional sculptures, then what harm is there to the copyright holder of that image? Presumably, none. The original copyright holder still has the image. True, but not so fast.

The problem with the above hypothetical is that makes property law and intellectual property law synonymous, while simultaneously eviscerating copyright doctrine and its mandatory "fair use" analysis.

That is really where my little analogy - stealing a wallet versus stealing an image - breaks down. Sérgio Muñoz Sarmiento (emphases in the original):

Still assuming we're not in a Star Trek episode, we don't use property law to dissect the above scenario; we use intellectual property law (with the term intellectual being key, meaning that it is, unlike real property, intangible), and thus, we apply copyright's "fair use" schema and its four non-exclusive factors.

As Donn Zaretsky notes in a follow-up post:

That's quite right, and there is no analogous schema when it comes to personal property: we don't ask whether taking someone's wallet was educational, or a parody, etc.

Michael Rushton responded to the exchange of posts writing (my emphasis)

it is not an all-or-nothing problem, since some appropriation, some fair use, increases creators' abilities to make new and interesting work. The optimal fair use provisions establish a balance between maintaining incentives for new work and for the ability to build upon existing work.

In a nutshell, that's exactly what I was after when I wrote my original post, that "balance between maintaining incentives for new work and for the ability to build upon existing work."

You cannot claim that taking someone else's image(s) is always fine, just like you cannot claim that taking someone else's image(s) should never be allowed. It's all about the balance.

If I find other comments/reactions to my original post, I'll add updates here.

Update (5 May 2011): This is a very worthwhile read.

So dear art world, here's your chance to do a little better.

Imagine someone stole someone else's wallet. Imagine the someone who stole the wallet is calling himself an appropriation artist. Imagine our appropriation artist then took the contents of the wallet, cut up the money, credit cards, and photographs and slapped them all, along with the torn wallet itself, on a huge canvas, also adding some paint. Imagine our artist named the whole thing "Oooga, oooga (21st Century Capitalism)" and added a "statement" (you'd get the full art-world package). That's appropriation art, isn't it?

I have an inkling that the art world would have a considerably harder time defending our wallet artist than they did when they defended Richard Prince. First, stealing a wallet very obviously is theft, and we all don't like theft. Second, while it's straightforward to defend the act as appropriation art, most serious art critics would probably realize that in fact it is not. I personally don't think it is anyway (it's just a thought experiment).

So here's my question: Why is stealing a wallet (physical property) not OK, whereas stealing a photo (intellectual property) is?

Art world, please explain.

In particular, I (and a lot of other people, including a great many photographers) would like to learn why stealing a wallet to create "Oooga, oooga (21st Century Capitalism)" is not fair use, whereas stealing photographs to create "Canal Zone" is.

I'll collect your answers (the blog posts - "tweets" won't do), and post the links here later (in a future post).

PS: I know perfectly well what appropriation art is and how it works. I also know quite a bit about copyright, fair use and the aspect of transformation. But I want to hear it from you, dear art world, because I don't think you've done a very good job at all so far.

Find a wonderful article about John Stezaker, one of my favourite artists, here.