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Fair Use Decision

By Monica Pa

On March 18, 2011, the Southern District of New York (Batts, J.), 08 Civ. 11327, issued a decision in the closely-watched copyright infringement case involving the well-known "appropriation" artist Richard Prince. In a surprising decision, the court held that images created by Price infringed the plaintiff Patrick Cariou's copyright in photographs of Rastafarians in a series of collages and paintings created by Prince and sold by his art dealer, co-defendant the Gagosian Gallery.

In 2000, Patrick Cariou published Yes, Rasta, a book of photographs that was released by PowerHouse Books. The book featured photographs of portraits of Rastafarian individuals in and landscapes of Jamaica.

Richard Prince is a well known artist who has shown at numerous museums and other institutions, including a solo show at the Guggenheim Museum in New York City. He is represented by the Gagosian Gallery, Inc., which is owned by Lawrence Gagosian. Prince admits that he used 41 images from the plaintiff's book as artistic elements in a series of paintings titled "Canal Zone", which was first exhibited in St. Barts and then in a 2008 exhibition at the Gagosian Gallery in New York City. The work included images taken from Yes, Rasta, some in their entirety, some where only portions were used, some were collaged, enlarged, cropped, and/or painted-over. The "Canal Zone" included photos and works from other sources as well.

The defendants argued that Prince's use of the plaintiff's photographs was a permissible fair use, which allowed him to use copyrighted materials for purposes like commentary, criticism, news reporting, and scholarship, as set forth in Section 107 of the Copyright Act.

The court, however, held that Prince's use of plaintiff's photographs in these collage works was not fair use. It reasoned that there is no "per se" exemption for appropriation art; instead, for the "fair use" defense to be available, there must be "a focus on the original works or their historical context[.]" Order at 16. Yet the court did not cite to any case law support for this proposition; instead, this rule appears to impose a wholly new element for a fair use defense. The court argued that, based on its reading of prior precedent, those cases all "impose[] a requirement that the new work in some way comment on, relate to the historical context of, or critically refer back to the original works." Id. It concluded that "Prince's paintings are transformative only to the extent that they comment on the Photos; to the extent they merely recast, transform, or adapt the Photos, Prince's Paintings are instead infringing derivative works." Id. at 18.

The decision appears to contravene the Second Circuit decision in Blanch v. Koons, 467 F.3d 244 (2d Cir. 2006), which held that the fair use defense was available to the "appropriation" artist Jeff Koons who had used the plaintiff's photograph in his collage painting. In Blanch, the court held that "[w]hen, as here, the copyrighted work is used as 'raw material,' in the furtherance of distinct creative or communicative objectives, the use is transformative." Id. at 254. Judge Batts, however, distinguished Richard Prince's collage paintings from Jeff Koon's paintings by holding that Koon's work was transformative; specifically, the purpose of Koons' paintings, unlike Prince's paintings, was "to comment on the role such advertisements [like the plaintiff's photographs] play in our culture and on the attitudes the original and other advertisements like it promote." Order at 17.

The district court's recent decision in Prince should certainly concern artists and galleries who had previously relied on Koons in the creation, distribution, and sale of "appropriation" art. The decision appears to add a new and poorly-defined element to the "fair use" defense (e.g., the necessity that works actually "at their core focus on the original works or their historical context"). Finally, in reading this decision, it is unclear whether and to what extent the attorneys for Prince relied on Blanch, which should have served as a playbook for their litigation defense. Certainly, it would not have been difficult to argue that, like Koons, Prince was also commenting on plaintiff's allegedly appropriated image. Indeed, it is surprising that Prince's attorneys thought to argue initially that there was no copyright in the plaintiff's photographs whatsoever, a position that is against well-settled law that has, for decades, held that photographs are worthy of copyright protection. Order at 10.

The decision is available at: http://www.scribd.com/doc/51219154/Cariou-v-Prince-S-D-N-Y-Mar-18-2011.

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This page contains a single entry from the blog posted on March 22, 2011 9:46 PM.

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