Patrick Cariou appears to have a better case than I first thought. Take a look at these examples where Richard uses most of the image and then add to that the possibility that Patrick’s images have appeared in a gallery at some point in time. There certainly is a case for harm to the potential market for the original copyrighted work which along with the amount of the image used is the main test for infringement in this case (that’s how I see it anyhow).
Here’s my previous post:
Cityfile has the exclusive (here) on a lawsuit filed by photographer Patrick Cariou against Ricard Prince, Gagosian Gallery, Lawrence Gagosian and Rizzoli International Publications in federal district court (here).
Unlike the most well known instance (here) where Prince appropriated another photographers work for his art, the images he used this time are owned by an individual photographer (from Patrick’s book Yes Rasta) and not a corporation. This should be a very interesting test of fair use because from what I can tell he’s taken only parts of Patrick’s images combined them with other images on a canvas and painted upon them.
I think this is going to be a tough case for Patrick because of the following:
“The fourth fair use factor – effect upon the potential market or value of the copyrighted work – considers the extent of harm to the market or potential market for the copyrighted work caused by the new work. This test evaluates the potential as well as actual financial harm to the original copyrighted work, as well as to current and potential derivative works.
The United States Supreme Court has declared this fair use factor the most important element of fair use. Therefore, those who wish to use another’s copyrighted materials without permission must decide whether or not their utilization of the copyrighted material is going to harm either the present or potential market for the copyrighted work.” (from PubLaw.com)
I’ve tried to argue in the past that photographers enjoy the benefits of fair use all the time when taking pictures that have copyrighted material in them but Richard Prince certainly takes this idea to the extreme every time.