A closely watched copyright case involving photographer Patrick Cariou and appropriation artist Richard Prince has taken an unexpected turn in favor of Prince on appeals. To recap: In December of 2008 photographer Patrick Cariou filed suit against Ricard Prince, Gagosian Gallery, Lawrence Gagosian and Rizzoli International Publications in federal district court (here). The suit came about after Prince appropriated 28 images from Patrick’s Yes Rasta book for his Canal Zone exhibit at the Gagosian gallery. In March of 2011 US District Judge Deborah A. Batts ruled on the cross-motions for summary judgment and found that the use by Prince was not Fair Use and Patrick’s issue of liability for copyright infringement was granted in its entirety. In other words, Patrick won.
According to many of the sites covering the case this caused quite a stir in the art world, because of the way the judge interpreted fair use. I liked the interpretation, because it offered guidance to artists wishing to appropriate work and claim fair use for transforming it. Essentially you had to comment on the original work to qualify. Simply using it as source material, as Prince admitted to doing, does not transform the work. Or as the judge put it at the time: “If an infringement of copyrightable expression could be justified as fair use solely on the basis of the infringer’s claim to a higher or different artistic use . . . there would be no practicable boundary to the fair use defense.”
The appeals court heard the case last May and wrote that a majority of Mr. Prince’s work manifested “an entirely different aesthetic” from Mr. Cariou’s pictures. “Where Cariou’s serene and deliberately composed portraits and landscape photographs depict the natural beauty of the Rastafarians and their surrounding environs,” the decision stated, “Prince’s crude and jarring works, on the other hand, are hectic and provocative.” The court found that most of the works by Mr. Prince under consideration were permissible under fair use because they “have a different character” from Mr. Cariou’s work, give it a “new expression” and employ “new aesthetics with creative and communicative results distinct” from the work that Mr. Prince borrowed. (source NYTimes.com)
The court is essentially saying that someone must look at the new work and determine that it has a different character than the original to know if the work is transformed by the artist. And, if that weren’t bad enough they sent 5 of the works back to the lower court (one can be seen below) because they were so minimally altered they may not be considered fair use by a reasonable observer. Using the new appeals court standard the lower court will determine if they are in fact a “new expression”. What a mess.
Not sure what options Patrick has left but it seems that the courts have no interest in clarifying fair use so that people can make reasonable decisions without resorting to lawsuits to sort it all out. Given the variety of opinions on what constitutes art, relying on reasonable observers to determine if alterations to copyrighted photography constitute a “new expression” with “distinct creative and communicative results” seems absurd.