In Cariou v. Prince, an Appeal to Clarify a Crucial Fair Use Boundary

by David Walker

Richard Prince
Richard Prince's 2008 work "Graduation" is one of numerous works in a series that appropriates photographs of Rastafarians from Patrick Cariou's book Yes Rasta.

A major copyright case working its way through a federal appeals court in New York pits a photographer against a well-known appropriation artist, and photographers have a lot riding on the case.

The fight is partly over how courts should interpret fair use, and whether the law allows copyrighted works to be re-purposed for new works that are “distinct” from the original work, even if they don’t comment on, criticize or in some way refer to the original work. Against the backdrop of the re-mix culture of the digital age, the outcome has practical implications: Just how far can appropriation artists go in re-using the works of others without permission?
The case is Patrick Cariou v. Richard Prince. Prince admitted copying 41 images of Rastafarians from Cariou’s book Yes Rasta and using them without permission for a series of paintings and collage called Canal Zone. Prince’s gallery, Gagosian in New York, exhibited the paintings and sold a number of them for a total of $10.4 million.

Cariou, a French photographer, won a copyright infringement claim against Prince last year when a federal trial court rejected Prince’s fair use defense. Prince had argued appropriation art is inherently fair use, regardless of whether or not the new artwork comments in any way on the original works. He made it clear in depositions that he wasn’t commenting on Cariou’s photographs, which he dismissed as “mere compilations of facts…arranged with minimum creativity.” Prince said he simply used Cariou’s reverential portraits of Rastafarians and landscapes as “raw material” for his own works.

The court said in its ruling last March, “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." (The court was citing the landmark Rogers v. Koons infringement case, in which an artist created a kitschy sculpture that copied a photographer’s image of a group of puppies.)

Defeated in the lower court, Prince is now appealing his case with a whole new argument: He claims his post-apocalyptical collaged paintings “may be reasonably perceived as satirizing” Cariou’s reverential portraits after all. At the same time, he argues that courts should not rely on what artists say the purpose of their work is in determining fair use. The reason is because the work can mean many things to different viewers. So the standard for fair use, he goes on to say, is whether the new work fills a different market niche “and can reasonably be perceived to make an artistic statement distinct from the original work.”

Prince asserts that his Canal Zone works satisfies those criteria because they are so different in meaning from Cariou’s work. And at the very least, he says, the lower court should have applied fair use analysis to each of his paintings individually, not declared them infringing as a group.

Cariou calls Prince’s claim that the paintings satirize his (Cariou’s) photographs a “revisionist argument” brought up to re-try the case in the appeals court. (Appeals are intended to determine if the lower court erred, not to give the parties a chance to try new arguments they neglected to bring up in the first place.) Cariou also says the onus is on infringers to state the purpose of their work and defend it, not leave it to courts to determine what might be “reasonably perceived” without regard to what the artist says about the intent.

A critical part of Prince’s argument is that infringing work does not have to comment on or criticize the original work in order to constitute fair use. Under statute and case law, he says, infringing work is protected by fair use if it “adds something new,” with a different purpose, expression, meaning or message from the original work.

If the appeals court accepts that argument, appropriation artists would effectively gain more legal “breathing room” for what they do. Prince’s supporters--most notably the Warhol Foundation, which filed a friend of the court brief in the case--argue that affirmation of the lower court ruling would have a chilling effect on artists. But a reversal, they say, would be a victory for free speech, and would benefit society by protecting the free flow of art and ideas that copyright was designed to foster, and that technology now enables. (Google, it is worth noting, has also filed a friend-of-the-court brief arguing for reversal because its services depend upon a liberal legal interpretation of fair use.)

But Cariou and his supporters use the same precedent cases to argue that infringing works must comment on or criticize the original works in some way to qualify as fair use. The law says, for instance, that fair use is "for purposes such as criticism, comment, news reporting, teaching, scholarship or research."
A narrow reading of the law, they assert, gives artists incentive to create new works (for the benefit of society) by protecting copyrights from unauthorized use.

 "Taking copyright work in order to create ‘something new’ has no practical boundary and would effectively eviscerate the rights of copyright owners," Cariou argues in response to the Prince appeal, echoing the lower court decision in his favor. He adds, "Randomly taking copyright works without justification, for use in secondary works that do not convey a message relating to the original,” doesn’t satisfy the legal test for fair use.

ASMP and PACA make a similar argument in a friend-of-the-court brief they filed in support of Cariou. If the defendant merely “recast, transformed, or adapted” the original, without creating new meaning that relates back to the original work, then all the defendant has done “is create an infringing derivative work," PACA and ASMP argue. If the courts allow that, the result will be to destroy the economic incentive for artists to create new works.

The dueling arguments effectively pit the interests of one class of visual artists--namely photographers--against the interests of another: namely, appropriation artists.  That’s because photographs lend themselves more easily to use as raw material by appropriation artists. Photos are more plentiful, more accessible, and less easily protected than other types of visual works. So photographers have much to lose—and appropriation artists much to gain--if Cariou v. Prince is overturned on appeal.

The appeal rides on other issues, too, such as how much Prince’s work interfered with the market for Cariou’s photographs, whether the lower court erred by ruling that Prince acted in bad faith by not trying to seek a license to use Cariou’s pictures,  and whether that same court erred by ruling that Gagosian is also liable for infringement.

The big question, though, is whether or not the lower court erred in concluding that Prince’s work didn’t pass the fair use test because it didn’t comment on or criticize Cariou’s work in some way. It’s a difficult legal question that the appeals court may sidestep completely. But if the court chooses to address the question, its decision may have far-reaching implications not only for photographers, but for everyone who embraces the re-mix esthetic of digital culture, and appropriates content without permission.

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