Artist Richard Prince won a significant victory on appeal in the landmark intellectual property case Cariou v. Prince today.
The case concerns Prince's "Canal Zone" series of paintings (2008), which incorporated photographs by French photographer Patrick Cariou from his 2000 book Yes, Rasta (Powerhouse) for a show at Gagosian Gallery. In 2009 Cariou brought a copyright infringement suit against Prince, Gagosian Gallery, Lawrence Gagosian and catalogue publisher Rizzoli. In March 2011, U.S. District judge Deborah Batts ruled against Prince and ordered the defendants to destroy remaining copies of the catalogue and unsold paintings that make use of Cariou's photographs.
That decision was largely overturned today, with the exception of five paintings that, the court concluded, must be reevaluated for claims of fair use.
"We conclude that the district court applied the incorrect standard to determine whether Prince's artworks make fair use of Cariou's copyrighted photographs," writes Judge B.D. Parker in the decision, which was released this morning. "We further conclude that all but five of Prince's works do make fair use of Cariou's copyrighted photographs. With regard to the remaining five Prince artworks, we remand the case to the district court to consider, in the first instance, whether Prince is entitled to a fair use defense."
"This decision absolutely clarifies that the law does not require that a new work of art comment on any of its source material to qualify as fair use," attorney Virginia Rutledge told A.i.A. by phone this morning after a preliminary survey of the decision.
"This is a major win for Prince on at least two counts," NYU art law professor Amy Adler told A.i.A. via e-mail. (She consulted on the case but was speaking for herself.) "The court decided that artwork does not need to comment on previous work to qualify as fair use, and that Prince's testimony is not the dispositive question in determining whether a work is transformative. Rather the issue is how the work may reasonably be perceived. This is the right standard because it takes into account the underlying public purpose of copyright law, which should not be beholden to statements of individual intent but instead consider the value that all of us gain from the creation of new work."
Prince collaged large reproductions of Cariou's images into a number of paintings in the "Canal Zone" series, with greater and lesser degrees of alteration—painting orbs over their mouths and/or eyes, collaging other elements atop or adjacent to them, and the like. Batts's decision decreed that unsold paintings from the series—several of which had sold for over $10 million—and copies of the exhibition catalogue be destroyed. Paintings that had sold, according to Batts's decision, could no longer be legally displayed in public.
Because of the high prices on Prince's paintings and the extent of the series, the works at issue represent, according to Adler, the largest financial stake in an art copyright law case. Other major cases, such as Blanch v. Koons, in 2005, have involved single works or limited editions.
The case has resulted in extensive debate over whether Prince's paintings meet the criteria for protection under "fair use" provisions of copyright law. Prince is widely seen as having set his own case back by claiming in his 2009 verbal deposition (compiled as a book, Canal Zone Richard Prince YES RASTA: Selected Court Documents, &c., &c., by filmmaker/artist/writer Greg Allen) that "I don't really have a message" or any comment on the originals, which, Cariou's lawyers argued in this case, should be required for protection under fair use. Interestingly, as if straight out of a postmodernist playbook, Prince's lawyers argued on appeal that no artist's statement should be the last word on his work.
Fair use also allows for "transformative" uses. The question of whether Prince's "Canal Zone" paintings meet that standard has raged for years now.
The court heard oral arguments in the appeal in May, and seemed sympathetic to Prince's side. Referring to the injunction's requirement that the unsold Prince works be destroyed, Judge Barrington D. Parker, Jr., observed, "It seems like something that would appeal to the Huns or the Taliban."
Though there have been others, Cariou v. Prince is the the most important art and fair use case heard by the Second Circuit since Blanch v. Koons, in which photographer Andrea Blanch sued Jeff Koons over his use in his 2000 painting Niagara of her photograph Silk Sandals by Gucci from Allure magazine's August 2000 issue. The court decided in Koons's favor in 2005, and Blanch's appeal was unsuccessful.
That case, by contrast with Cariou v. Prince, hinged on Koons's compelling testimony for the necessity of using found imagery.
Koons argued in his affidavit that "My paintings are not about objects or images that I might invent, but rather about how we relate to things that we actually experience. . . . Therefore, in order to make statements about contemporary society and in order for the artwork to be valid, I must use images from the real world. I must present real things that are actually in our mass consciousness."
Judge Louis L. Stanton of U.S. District Court found in his decision that Niagara constituted a "transformative use" of Blanch's photograph. "The painting's use does not ‘supersede' or duplicate the objective of the original," Stanton wrote, "but uses it as raw material in a novel way to create new information, new esthetics and new insights. Such use, whether successful or not artistically, is transformative."
Had the court decided that fair use protection specifically required comment or criticism on the original, as Cariou's lawyers argued, it would have conflicted with decisions by the Ninth Circuit in cases such as Kelly v. Arriba Soft Corporation and Perfect 10, Inc. v. Amazon.com, Inc., which allowed for fair use protections based on a benefit to the public of the use of copied images.
Prince's work has been a touchstone for art that uses appropriation since his images of the Marlboro Man from the 1970s, which were taken directly from advertising iconography.