Thursday 2 May 2013

US Court of Appeals reverses the previous decision on Prince v. Cariou. A victory for appropriation art?

Richard Prince "Graduation" (2008)

The Court of Appeals for the Second Circuit on April 25 reversed the decision on the Prince v. Cariou case in favour of fair use. 

As already exposed here, in 2011 Cariou sued Prince and the Gagosian Gallery alleging that Prince's works and exhibition catalog infringed his copyright. Indeed, the famous appropriation artist Richard Prince altered and incorporated the Cariou's Yes Rasta photographs, creating a series of paintings and collages called Canal Zone, that he exhibited in 2007 and 2008 first at the Eden Rock Hotel in St. Barth's and later at the New York's Gagosian Gallery. 

In the first instance, the US District Court for the Southern District of New York held Prince's works infringed Cariou's copyright, not recognizing any fair use. In order to be qualified as transformative, the Court required a new work of art  in some way  to comment on, to relate to the historical context of, or to critically refer back to the original work. Since Prince did not intend to appropriate the photos for the required puposes, the Court rejected the defendant's fair use defense.

But the Court of Appeals reversed the previous decision finding that "the law does not require that a secondary use comments on the original artist or work, or popular culture" to be considered transformative and may constitute fair use even if it serves other purposes than those included in the Statute preamble of the 1976 US Copyright Act (criticism, comment, news, reporting, teaching, scholarship and research). The Court affirmed that copyrighted images can be used as raw materials for new works of art, even when the artist has nothing to say about the images he altered.

The Court held that twenty-five out thirty Prince's artworks constituted fair use of Cariou's copyrighted photographs, while the remaining five works presenting closer questions will be judged again by the district court according  to the four fair use standards, as interpretated by the Court, and namely:

 (i) the purpose and the character of the use

This first factor requires considering whether the allegedly infringing work has a commercial or non profit purpose and, usally, only the latter purpose is considered as fair use. But the Court, though commercial, found Prince's artworks much transformative, then it held that the other factors should be considered more important in determining fair use than this one.

(ii) the nature of the copyrighted work

The Court found that the Prince's creative works of art had a substantially transformative purpose and, therefore, a different nature when compared to Cariou's ones.

(iii) the amount and sustantiability of the portion used in relation to the copyrighted work as a whole

This factor involves considering whether the quantity and the value of the original artwork are reasonable in relation to the purpose of copying. The Court interpreted such third factor saying that the inquiry must take into account that the extent of permissible copying varies with the purpose and character of the use.

The peculiarity was that many Prince's works copied the entire source photograph. Contrary to the District Court - which affirmed that Prince's taking was substantially greater than necessary - the Court concluded that the law does not require that the secondary artist may take no more than is necessary, affirming that Prince transformed those photographs into something new and different in twenty-five works out thirty.

(iv) the effect of the use upon the potential market for the value of the copyrighted work.

Contrary to the District Court, the Court of Appeals affirmed that the question does not focus on the damage to Cariou's derivative market, but rather whether the secondary use usurps the market of the original work or not. The more transformative the secondary use is, the less likelihood that the secondary use substitutes for the original. Since the Prince's works are very transformative, the Court found that they did not usurp the market of Cariou's works.

Only one Judge of the Court expressed a dissenting opinion arguing that all works,  and not only  the five ones which were too aesthetically simalar to Cariou's ones, should be turned back over to the district court admitting that " I am not an art critic or expert, I fail to see how the majority in its appellate role can "confidently" draw a distinction between the twenty-five works that it has been identified as constituting fair use and the five works that do not readily lend themselves to a fair use determination".

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