Appropriation Artist Richard Prince Liable for Infringement, Court Rules

by David Walker

A federal court judge in New York ruled on Friday that appropriation artist Richard Prince and his gallery infringed photographer Patrick Cariou's copyrights by creating a series of paintings and a collage from photographs torn from Cariou's book titled Yes, Rasta.

The book was published in 2000 by PowerHouse books, and featured Cariou's portraits of Rastafarians and landscapes of Jamaica. The ruling against Prince and Gagosian Gallery in New York was handed down by Judge Deborah A. Batts in United Stated District Court for the Southern District of New York (08 Cic. 11327).

Cariou sued after Prince exhibited a collage titled "Canal Zone" at a hotel in St. Barts from December 2007 to February 2008. To create the collage, Prince used 35 photographs from Cariou's book. He used portions of some of them, but "others were used in their entirety or nearly so," according to court records.

Prince also created a series titled Canal Zone of 29 paintings, 28 of which included images taken from Yes, Rasta, according to court records. Gagosian exhibited 22 of the 29 paintings at the end of 2008, and issued a catalog showing the works. The exhibit and catalog made the gallery liable for infringement along with Prince.

Cariou's own gallerist, Christiane Celle, cancelled a show of Cariou's work after she became aware of the Canal Zone exhibition at Gagosian. She testified that she did not want to seem to be capitalizing on Prince's success and notoriety, and didn't want to exhibit work that had been shown already at another gallery, according to court papers.

In his defense, Prince argued that Cariou's images were "mere compilations of facts...arranged with minimum creativity...[and] are therefore not protectable" by copyright law. The judge rejected that argument on the basis of plenty of case law, then turned to Prince's primary line of defense, which was his assertion that his use of Cariou's work amounted to fair use.

Fair use is a provision of the law that allows copyrighted works to be used without permission for purposes such as criticism, comment, news reporting, teaching, scholarship, or research. Courts apply a four-pronged test on a case-by-case basis to determine whether a particular use is fair or infringing. In this case, the court found in Cariou's favor on all four tests.

Prince tried to argue that appropriation art is inherently fair use, regardless of whether or not the new artwork comments in any way on the original. But the court rejected that, citing the ruling in the landmarks Rogers v. Koons case that said, "If an infringement of copyrightable expression could be justified as fair use solely on the basis of the infringer's claim to a higher or different artistic use . . . there would be no practicable boundary to the fair use defense."

For several reasons, Prince failed the first test for fair use regarding the character of the infringing work. First, according to his own testimony, he did not create his Canal Zone works as commentary on Cariou's original works. He was simply using the original works as his raw materials.

Second, Prince's works were intended primarily for commercial rather than educational purposes. Eight of the paintings sold for a total of $10,480,000 (which Prince and his gallery divided 60/40).  Seven other paintings were exchanged for other works with a total estimated value of $6 million to $8 million.

Third, the court found that Prince and Gagosian acted in bad faith. Prince contacted PowerHouse for multiple copies of Cariou's book, but never asked for permission to use the images despite Cariou's clear copyright notices--and his accessibility. And Gagosian was  not only well aware of Prince's record of appropriating the works of other artists without permission, but the gallery didn't stop trying to sell Prince's works after Carious sent a cease-and-desist notice.

The court also found in Cariou's favor on the second and third tests for fair use, after determining that his works were "highly original and creative artistic works"--not just factual or informational--and that Prince used a significant and substantial portion of them. "In a number of his Paintings, Prince appropriated entire photos, and in the majority of his paintings, Prince appropriated the central figures depicted in portraits taken by Cariou," the court said.

Finally, with regard to the effects that Prince's work had on the potential market of Cariou's work, the court found that because Cariou lost a gallery show because of the Canal Zone work, "it is clear that the market for Cariou's photos was usurped by [Prince and Gagosian]...the Court finds that Prince has unfairly damaged both the actual and potential markets for Cariou's original work and the potential market for derivative use licenses for Cariou's original work."

The court concluded by granting Cariou's motion for a finding of copyright infringement against Prince and Gagosian. The court order the defendants to destroy all the infringing works--including paintings and exhibition catalogs--still in their possession. Prince and Gagosian were also ordered to notify those who bought the Canal Zone paintings that those works were not lawfully made under the copyright act, and that they cannot lawfully be displayed.

A hearing has been set for May 6 to determine damages.


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