A federal appeals court has ruled that artist Richard Prince did not infringe photographer Patrick Cariou's copyrights by reproducing several dozen of Cariou's images without permission. The appeals court said 25 out of 30 works by Prince at the center of the dispute made fair use of Cariou's photographs.
The decision reversed a lower court ruling that held Prince liable for infringement.
But Cariou did not lose entirely. Uncertain about whether the remaining five Prince works in dispute passed the tests of fair use, the US Court of Appeals for the Second Circuit ordered the lower court to reconsider whether those works are also fair. The lower court was ordered to apply a broader standard than it had applied previously.
Overall, the ruling is a victory for appropriation artists, who take elements of works by other artists without permission, and use them in new contexts, often as a form of commentary on society or popular culture.
In its ruling, the appeals court took a broad view of an important test for fair use, finding that Prince's works qualified even though they were not intended as commentary on the original works by Cariou.
"We agree with [Prince and his gallery, Gagosian] that the law does not require that a secondary use comment on the original artist or work, or popular culture," the appeals court said in its ruling. The lower court must apply that standard to its fair use consideration of the remaining five works, the appeals court added.
At issue in the case was a series of paintings and collages that Prince created by appropriating images from Cariou's book Yes, Rasta. Prince altered the images in various ways for a series of paintings called "Canal Zone," which he displayed at the Gagosian gallery in New York in 2008. Most of the works eventually sold, fetching a total of $10.4 million.
Cariou sued Prince and Gagosian for copyright infringement in 2008. Prince argued that Cariou's images were "mere compilations of facts...arranged with minimum creativity...[and] are therefore not protectable" by copyright law.
He also argued that that appropriation art is inherently fair use, regardless of whether or not the new artwork comments in any way on the original. (He originally testified that he used Cariou's works as raw material for his paintings and collages, which were not intended as commentary on Cariou's works.)
Cariou countered that new works are transformative only if they comment upon or refer to the original work in some way; otherwise, the new work is infringing.
While the lower court agreed with Cariou, the appeals court reached a different conclusion. It said:
"The law imposed no requirement that a work comment on the original or its author in order to be considered transformative, and a secondary use may constitute a fair use even if it serves some purpose other than those (criticism, comment, news reporting, teaching, scholarship and research) identified in the preamble to the statute."
The court went on to say that Supreme Court rulings have emphasized that to qualify for fair use, "a new work generally must alter the original with 'new expression, meaning, or message.'"
"Our observation of Prince's artworks themselves convinces us of the transformative nature of all but five," the appeals court added. Prince's works had a different character, and gave different meaning to Cariou's original photographs, the court explained.
Of the five works sent back to the lower court for further consideration, the appeals court said those works do not differ sufficiently from Cariou's original photographs for the appeals court "confidently to make a determination about their transformative nature."