Attorneys for artist Richard Prince say his use of photographs by Patrick Cariou in a series of collage paintings is protected by the fair use provision of copyright law.

Cariou sued Prince, an art gallery and a book publisher in December over Prince’s “Canal Zone” series. Cariou claims Prince illegally copied photographs from his book Yes Rasta. The lawsuit accuses the defendants of copyright infringement and seeks unspecified damages.

Prince’s artworks were displayed at the Gagosian Gallery in New York and distributed in a book by Rizzoli last year.

In recent weeks, all of the plaintiffs have responded separately to the lawsuit. No one disputes that Prince used Cariou’s work, but Prince, Gagosian and Rizzoli argue that the use is protected by law.

In an answer filed March 3, Prince’s attorneys say Prince acted in good faith and according to established artistic practices: “Prince’s paintings are transformative in nature, and include new meaning, new artistic expression and a new message by utilizing portions of the photographs, together with other images and media, to create new and unique work which comments on certain aspects of culture. The portion of the photographs utilized was partial and reasonable in light of Prince’s artistic and expressive purposes as set forth above.” The response also says Prince’s work posed no harm to the value of the photographs.

Prince’s attorneys cite Chapter 17, Section 107 of the United States Code, which allows copyrighted works to be reproduced under certain circumstances, including criticism, comment, news reporting and in educational materials.



In a separate filing, defendants Gagosian Gallery and Lawrence Gagosian also say Prince’s use of Cariou’s photos is protected by fair use.

“Prince’s works were created with an entirely different functional purpose than the purpose for which Cariou claims to have taken the photographs in Yes Rasta, and they embody new expression and meaning to create an entirely different type of art with different objectives,” the Gagosian response says. It also says, “defendants did not cause any harm to Cariou’s career nor did it decrease the market value for his photographs. Furthermore, there is no derivative market for Cariou to tap into that is in any way related to defendants’ use of his work.”

In another response to Cariou’s suit, Rizzoli International Publications similarly argues that Prince’s work is fair use. Moreover, Rizzoli’s attorneys say the publisher is entitled to indemnification if Prince and Gagosian are found liable, “based on the co-defendants’ culpable conduct and/or contractual agreement.” Prince and Gagosian responded by saying Rizzoli is not entitled to indemnification.

Carious vs. Prince is one of two significant fair use cases involving photography and art now pending in the U.S. District Court Southern District of New York. In an unrelated case, artist Shepard Fairey and the Associated Press are in a copyright dispute over Fairey’s use of an AP photo for a famous Barack Obama campaign poster.

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January 13: Photographer Patrick Cariou Sues Richard Prince for Copyright Infringement