More than a century ago, Justice Oliver Wendell Holmes warned that it would be dangerous for people trained only in the law to decide the worth of a work of art—at least outside of the narrowest and most obvious limits. As Holmes said: “At the one extreme some works of genius would be sure to miss appreciation. Their very novelty would make them repulsive until the public had learned the new language in which their author spoke.”
Perhaps anticipating the arrival of such works as Tom Forsythe’s “Barbie Enchiladas” and Jeff Koons’ “Balloon Dog (Orange),” Holmes’ statement rings particularly true in today’s “appropriation art” scene. Indeed, the growth of appropriation art, which the Museum of Modern Art (MoMA) defines as “the intentional borrowing, copying, and alteration of preexisting images and objects,” has been stunning. As just one example, when Andy Warhol premiered his Campbell’s Soup Cans work back in 1962 (which is a painting of a bunch of soup cans in a row), the canvasses only sold for only $100. But in 1996, (at what must have been the height of America’s craze for salty soups), the paintings sold for $15 million.
Earlier this week, the debate over judges deciding the worth of works of art was reinvigorated as the United States Supreme Court decided not to hear an appeal of an extremely high profile fair use case called Cariou v. Prince. In Cariou, a federal court of appeals in New York ruled, in a 2-to-1 decision, that 25 out of 30 paintings by Richard Prince made fair uses of copyrighted photographs by Patrick Cariou. With respect to the other five Prince paintings, the appellate court sent the case back to the district court for a closer examination. But as the dissenting judge recognized: the line between the 25 fair uses and the five questionable ones is very thin—and might be better left to art experts to define rather than judges.