“Recognizing the motives corporations have in aligning themselves with art that appears to conflict with their interests may at least partly explain how Prince was able to evade any legal skirmishes over his Untitled (cowboy) prints. Phillip Morris USA owns the Marlboro brand, and, of course, the copyrights to the cowboy images from which Prince appropriated. Their tacit approval of Prince’s work might contradict the maximum control logic characteristic of intellectual property regulation, but perhaps Phillip Morris’ desire to associate itself with artistic innovation has outweighed its commitment to brand management. Or perhaps allowing Prince free reign is precisely part of its branding strategy; aligning with art enhances Phillip Morris’ image, something important for a tobacco company with a less than stellar public reputation.
Yet still left unaccounted for is photographer Jim Krantz who, as a work- made-for-hire employee, actually took some of those photos for Marlboro. With Prince’s singular authorial control, he becomes Krantz’s surrogate, the self-possessive author Krantz cannot be. This however can only provide cold comfort, for Prince has never acknowledged Krantz, who has been replaced now twice over as the author of the photographs. And finally, under Prince’s authority, the images travelled full-circle; advertising-became-art-became-advertising, when Krantz’s images lined Manhattan streets in posters and banners that promoted Prince’s exhibit.
Levine’s Untitled (After Edward Weston) series has had no less help from institutional para-regulation. Her appropriation of Weston’s 1925 images was perhaps riskier, for she was taking from a canonized figure in modernist photography; any legal skirmish would be artist versus artist. The exhibition of the work in 1980 did catch the attention of the Weston estate, and while the details are vague, by 1981 Levine had moved on to appropriating the FSA work of Walker Evans, whose government commissions remain in the public domain.
This same year, 1981, was also the year that Weston’s archive and copyrights were sold to the Center for Creative Photography at the University of Arizona, which spends “a lot of time encouraging fair use, discouraging censorship, and preserving the work of artists…so that they can be appreciated by generations to come.” The Center is aware of Levine’s practice, but has, like Phillip Morris with its Marlboro images, given tacit approval to it; in addressing the limits of appropriation, Amy Rule, Head Archivist at the Center, states, “We might go after someone using [Weston’s] images to sell laundry soap, but I doubt that we would try to stop an artist’s exploration of legitimate aesthetic issues.” Yet it is not that appropriation art can’t be used to sell, as Prince’s street banners demonstrate. It is that it is, within the institution of art, limited to selling itself as a concept of art, as a concept of resistance that can only ultimately be experienced in the imaginary realm provided by what Marcuse might have called “affirmative culture.” “To pose real trouble for the author in copyright doctrine,” scholar Jane Gaines concludes, “Sherrie Levine would have to reproduce her own copies of Edward Weston as postcards and then sell them––the stiffest test of “free commercial speech.””
“I have attempted to link the postmodern avant-garde to a reassertion of the author-subject, even as the discourse that enveloped the Pictures movement at the time nurtured a critique of originality and authenticity.”