Trashy Victory for the Artist Formerly Known As . . .

Albert Prince has once again proven that – for better or worse – he is the epitome of an “appropriation artist.”  You may recall that I had some misgivings about the 2nd Circuit’s determination in Cariou v. Prince that Prince did not infringe upon plaintiff’s copyrights by making so-called“transformative use” of entire photographs that he incorporated on canvasses and to which he added collage-like elements.

This week, however, Mr. Prince was awarded victory in an entirely different arena:  the reversal of a fine for removing an antenna (no doubt for use as a found object in an upcoming sculpture) from a New York City trash pile.

The New York Law Journal (subscription required) reports that police arrested Mr. Prince for taking the antenna, impounded the car in which he put the stolen trash, and fined him $2,000.  The fine was imposed pursuant to a statute passed to prevent private profiteering at the expense of the city’s recycling program.  An administrative law judge upheld the fine of the Environmental Control Board (ECB) on the grounds that she did not have the discretion to reduce it.  A trial court judge affirmed on the same grounds. The New York Appellate Division, 1st Department however, reversed – on constitutional grounds!  The panel determined that, pursuant to the 8th Amendment, the fine was excessive, was not reasonably related to the harm it caused (none to the prior owner of the trash, de minimis to the City for recycling purposes), was imposed on someone who was a first time offender and not in the business of re-selling recyclable materials , and should have been reduced to a smaller fine that would have deterred this defendant’s future illegal conduct.

In my view, the result is probably the right one, but the 1st Department might not have made certain assumptions if they knew more about Albert Prince in the copyright arena.  I would argue – somewhat tongue in cheek — that Prince is not a “first offender” as far as taking others’ materials, and that he is, in fact, in the business of re-selling recyclable goods (at least artistically).

But the kicker is in the final few paragraphs of the article:  Prince was represented by the Legal Aid Society.  So, the artist formerly known as Appropriator-Blessed-by-the-Second-Circuit (and someone who paid for or received all of the attorneys’ time and/or fees that contributed to winning that appeal) now appropriates the free legal services normally reserved for the indigent.  Such legal services are partly government funded.  Now, I’m not suggesting for a moment that Legal Aid should not be fully supported – but I do question whether Albert Prince should receive such pro bono largesse.