Altering Photographs Deemed Fair Use In Landmark Case

- - Art, copyright

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.

(You can download the decision here)

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.

There Are 67 Comments On This Article.

  1. Not as absurd as saying you have to “comment” on the original whatever that means. As if art isn’t an opinion or expression.

    Prince may have done some strange things in the name of art (displaying unaltered pulp fiction paperbacks on pedestals perhaps) but its always “his” work and unmistakeable.

    The only reason we have these controversies is because his work sells for a.lot.of.money. That’s why the artists who’s work he appropriates get their knickers in a twist. He has better ideas.

    • Cariou had his gallery show cancelled after Prince appropriated his work, so yeah it’s about money.

      Comment, criticize and parody are only the most widely used fair use transformations available. Pretty clearly defined over the years.

      • well that is the issue, the years don’t matter as much as they used to.

        We are in a sea of imagery and that ship has sailed:)

        • Donnor Party

          “We are in a sea of imagery and that ship has sailed:)”

          You are right about this. I may not like it, but a copyright in a photograph aint what it used to be.

          • well I am not totally familiar with what prince used as the source- a picture from a book?- he “defaced” something, either a print or some object.

            You know if someone wanted to buy the mona lisa and paint over it they’d be within their rights- copyright does not extend to protecting objects. It’s meant to protect ideas, and in this he has altered the idea of Cariou’s work. I don’t like it but he can do afaic.

            The marlboro ad work was completely justified imo- he was repurposing what he saw and what many many people saw at the time as “trash”- colour advertising photography – tears being thrown out at NYmag. He was tearsheeting at NYMag sending “real photographs that had appeared to photographers for their tear sheets- (that never happens now!:) and what was left- the “trash” if you will, all the ads. He saw something in that that I don’t believe others saw, and he rephotographed it and made it something else.

            Call it kitsch, pop, appropriation, whatever, its just one way to make art.

            When I photograph malls I am appropriating their sinage, architecture, design, whole gestalt for my own ends. I don’t see a huge difference in the end.

            Well all have to start with “something”.

            • Donnor Party

              The distinction between the Marlboro Man stuff and the Rasta stuff is, I believe, the source material. The Marlboro Man and corporate ads in general are fair game, as the imagery is iconic. We carry it around in our heads. The Rasta stuff is not iconic. Its not like Prince is using it as a comment on how the West fetishises indiginous people or is otherwise commenting on the original work. This to me is important.

              BUT, how that MAN sees things is that Patrick’s book was sitting in a warehouse waiting for the remainder man, not generating any economic activity. Prince turned it into GOLD.

            • “copyright does not extend to protecting objects. It’s meant to protect ideas” – this is exactly false. Don’t take my word for it – do some research.

              One cannot copyright an idea: If I have an idea for a photo [i.e. a layout or comp drawing for example], it is not copyrightable as a photograph until you make it one.

                • Within this argument there is a line somewhere – interpreting that line is tough for sure. It’s my belief that Prince has crossed that line more than once and that he counts on it to sell his “art”. I also believe he calculates the win-ability of cases. Sell 3 $1,000,000 pieces and it doesn’t take a GM sized risk management department to advise him to go for it.

                  • that makes little sense, take a barely known artist, appropriate their work and suddenly that “brazen” theft is art?- what was it picasso said, steal from the best?

                    I think the appropriation source is immaterial to his work, or at least not as significant as his detractors would want to believe.

                    In that case the pulp fiction covers of nurse betty should hang in the MOMA on their own merits.

                    Art should cross lines. Otherwise its kinda boring.

                    • Indeed – art needs to push limits but I thoroughly disagree that source material doesn’t matter. Granted it seems to matter much less if the source material is of little regard or of little financial worth but if your REALLY think it doesn’t matter, try lifting one of the Star Wars characters for your art with minor changes. You’ll discover the “line” to which I refer quick enough.

            • “You know if someone wanted to buy the mona lisa and paint over it they’d be within their rights-”

              I’m pretty sure it’s illegal to willfully destroy artworks even if you own them.

              • steve wynn put an umbrella through an impressionist painting in his own hotel, one he owned. It was an accident. He had it fixed. But he was not arrested.

                I am not aware of laws prohibiting the destruction of your own personal property.

                The point is art is always destroying the old. Duchamp’s urinal. That’s kind of the opposite but you get the idea.

  2. Patrick still has the option of appealing to the Supreme Court. This does seem like something they need to weigh in on, so maybe it would be accepted. Not that he himself has the money or desire, but maybe with some help.

    • It’s hard to imagine that Supreme Court would have anything to say that they didn’t already say in Campbell v Acuff-Rose Music, upon which the appellate court depended heavily. (http://scholar.google.com/scholar_case?case=16686162998040575773&hl=en&as_sdt=2&as_vis=1&oi=scholarr)

      Maybe they would reverse the idea that the original does not need to be the object of fair use commentary. But it’s hard to find justification for that argument in the law—or for that matter in the stated intention of copyright.

      It is a shame we don’t have a clearer standard; it would make our lives easier. But, as Pierre Leval said in ‘Toward a Fair Use Standard’ (http://docs.law.gwu.edu/facweb/claw//LevalFrUStd.htm) —”we should not adopt a bright-line standard unless it were a good one–and we do not have a good one.” The Leval essay is the source of much of the thinking about transformational use that has made its way into court decisions and is worth reading if you are interested in such things.

  3. Once again, lawyers win regardless. By making things ambiguous, lawyers can generate more billable hours working for either side of a case. Makes one think that judges care more about exerting their power and influence than ruling for justice.

    Personally I believe vandalism would be a better solution.

  4. Scott Rex ely

    Great, judges telling us what provacative and jarring mean relating to a piece of art.
    Danger Will Robinson!. . .

  5. >”That’s why the artists who’s work he appropriates get their knickers in a twist. He has better ideas.”<
    I suppose I see it differently. I see it as Prince just stealing someone elses work outright and messing it up with his crappy glue stick and scissors, and Cariou is now told it's just too bad for him.
    I would hate it if I came home one day and found my house redecorated with someone else living in it, and the judge told me that the new "owner" did such a great job with the handscreened voile draperies and handpoured concrete countertops that I should just get out of his way and shut up.

      • Ha! Yes there are. I do remember a Trading Spaces episode where the family came home to find that their “neighbors” had repainted their family room in massive grey and orange horizontal stripes, with a matching piece of grey and orange striped “art” over the fireplace. I think someone from Gagosian was hanging out just off screen with a checkbook!

  6. If Cariou’s subjects ever see Prince’s revised images, they might think twice about ever letting anyone aim a camera at them again for fear of begin reduced to humiliating caricatures. Cariou undoubtedly worked to build trust with the people he photographed, something I assume that Prince doesn’t consider or care about based on what I’ve seen, as he pastes Cariou’s photos into a pornographic context. Prince apparently doesn’t consider or care how Cariou’s subjects might feel about their likenesses being appropriated into his art.

    • Absolutely correct. He spent several years in vary dangerous conditions winning their trust. The very real victims here are the subjects, whose highly codified moral system and distrust of Babylon have been made manifest by Prince’s desecration.

  7. Mark Madeo

    I don’t get it. What’s so difficult about attribution or heaven forbid, payment?
    Pick up the phone and say “Patrick, I love your work, can we collaborate? No? OK, then, I’ll look for someone else, or book my own travel to Jamaica, make my own contacts, shoot, process, print, and then get out my scissors and spray can.”
    I can see that the Prince work is transformative, but if Patrick’s photos are so integral (as opposed to any istockphoto images of Rastas), shouldn’t there be some sort of acknowledgment – on some level?? I just can’t help but have more respect for someone who has respect for their source material.
    Appropriation? We’ve seen that soup can and that Obey poster. We get it.

    • Prince did offer Patrick money—lots—after the work was done and for sale. Patrick declined. Anyone who knows him will recognize this is not out of character. The principle here is the respect of the subjects, not about being asked first.

      • Mark Madeo

        Thanks Daniel, that’s an interesting detail that I never knew. However, had Patrick been asked first, he’d have been given the opportunity to defend his subjects’ integrity, as he saw fit.

        • Indeed! It’s different when Prince appropriates advertising ephemera; no harm no foul. But he’s crossed into a morally sketchy realm using real subjects as abstract objects.

          • Mark Madeo

            I’m not a journalist, but I can only imagine how much the climate has changed when it comes to gaining the trust of subjects in these days of “new media”. Prince’s use of the Rastafarians is no clearer example in my opinion of that trust being violated. And considering how much money journalists make, that trust is one of their few assets.

          • …and all street photography….? PLDiCorcia Streetwork?

            Sam Abell certainly had a problem with his appropriation of his cowboy work.

            All art uses real subjects as abstract objects.

            • The P. L-Ds and Jeff Walls of the artworld of course secure model releases; they’re really actors. No releases are necessary for street photography as long as for journalistic—or artistic—purposes; though latter you would want subject’s cooperation. Books are commercial products, so releases are needed. But Robert my friend, you are wrong here; W. Eugene Smith, Abbott, Levitt, the whole school of humanitarian and documentarian photography does not use reals subjects as abstract objects; they are indeed very formally (indeed objectively) subject-focused.

              • PL got sued and won with his streetwork. He did not have releases.

                The humanitarian school is but one area of art making. I’m being blunt by saying what I am saying but art does not owe its subjects anything necessarily. Whether we like it or not is another question.

                • Robert is correct on this. Since Philip-Lorca diCorcia’s subjects were in a public place (on a NYC sidewalk) the courts ruled that they had no right to privacy and that diCorcia could sell the images as “Art” under the 1st Amendment.

  8. Scott Rex ely

    I hope Prince starts his next project with a fine Disney product to make it more provacative and jarring too.

  9. On that point, would those photo subjects have a right of publicity claim for those second uses of their images, likely without their permission?

    • Good point, thinking about it, surely having the subject of the image being the one bringing the complaint would have altered the ruling, even if aspects of recognition of the subject are blurred.. and asking for compensation for personal defamation ?

  10. Bend Over and take it

    In the end it would have cost less money to hire someone to execute Richard Prince and set him up along side Jimmy Hoffa than it will to fight for the photographers rights.

    This will turn out to be a continuing saga for photographers and will make the ability to earn a living and retain the rights to ones own images harder and harder.

  11. Heavy Handed

    Does this mean that anybody can copy a popular song, and just “add a different esthetic” to it?

    What about taking an expensive recording of the New York Philharmonic, and mix it up DJ style?

    I suppose this would not work. It would, of course, be theft, as the musicians have to be paid for using what they produced. And the New York Philharmonic would be well connected enough to protect themselves.

    Too bad, that Mr. Cariou is “just” an individual. Repeatedly we see that the rights of individuals is disregarded if they don’t have any powerful connections behind them.

    The judge has really shown his ignorance in art and culture. Mr. Prince may do his childish and silly work but he can’t just take anybody’s work. Mr. Cariou has spent time and effort on his pictures. Just because they are art, they can be stolen?

    I hope this goes one level up and will get a judge who is able to understand what he’s judging.

  12. It seems he also copied a famous portrait of Jimmi Hendrix, to make his transformational commentary. Ridiculous. If a work of art is identifiable, NOBODY should be able to use it, without permission. Maybe the only exception being a clear homage to a work (other than music – non lyric). If the courts even touch our copyright laws, they will KILL art, in every form. They should tread lightly.

  13. So … if I’m understanding this correctly. From now on, I should feel free to – let’s say – take a piece from Richard Avedon, draw a mustache on it and – voila – an original work of art! Hmmmm, that could work in my favor – let me think about this.

    • I was wondering the same thing, Bruce. More specifically, what if Cariou was to take Prince’s altered images, alter them even further, and put them up for sale in a gallery as his own work? Would Mr. Prince object?

      • This is the BEST idea I’ve heard! Also, taking a piece of Prince’s thievery, and Elmer’s gluing a tiny Disney character on there, and putting it up for sale. Someone please try this.

        Seriously, I hope this stays in court, and the higher appeals court reverses this dangerous and [stupid] ruling.

    • yes you can buy a book of avedons images and do whatever you want to them. You can even just buy the book, put in on a pedestal, and say “done.”

      Whether or not anyone wants to buy this from you is another story. If it is a strategy you just decide to adopt willy nilly then good luck. However, if you build a career and do it intentionally and people like it enough to buy it and it moves people eventually then you become associated with that and if it expresses what you want then that is what art does.

      Everyone seems to think Prince just woke up one day and decided to steal some ad clippings and fob them off on a stupid art scene. I don’t get it.

      • Donnor Party

        This isn’t quite right, as in this example with the Avedon book there was no copy made, its just a physical object. Its the copy aspect and publication/sale of the copy.

      • Scott Rex ely

        “Everyone seems to think Prince just woke up one day and decided to steal some ad clippings and fob them off on a stupid art scene.”
        Well what gave that away? The depth of his art?

      • @robert – your answers are very well thought out. I’m just curious – no judgement intended – are you a commercial artist or fine artist?

        • a bit of both. I haven’t earned money from fine art but maybe in my retirement….:)

          I can collage some of my old commercial work….!

          I get why people don’t like what Prince does, but I think we need to be able to be free to do it. Whether or not the people respond to the work is another thing. The fact that Prince enjoys support from collectors says something, I’m not sure what. Perhaps he is supported mostly by speculators, the art market is full of people who buy work simply to watch it gain value. In that sense Princes’ strategy is very fraudulent.

          But as a participant in the art world with all its hypocrisy– he is to me a realist- he’s makes the work and then he lets other fight about it. There is something to that that I think is necessary.

  14. I am not a copyright expert but I have always thought it to be only enforceable for those who’s name and work are recognizable. What I mean is if your someone with no power or money then try fighting it,this is a good example. I suppose Mr. Prince has a few shekels to throw around to fight this? I would suspect he also has a few friends with some cash that have interest in seeing his work survive as legitimate? The other guy I bet not so much cash,he’s losing.
    I may be an idiot but thats the way I see it. I also may be foolish by saying we should eliminate this copyright hoax. Lets face it we live in a cut and paste society. Go to any night club and listen to the DJ mix, tell me there is not copyright infringement going on? I say free art from copyright because the copyright laws only work for those who can afford to fight them! Just my opinion.

    • Free art from copyright? You’ll find that if you had your way, art would eventually be dead because no one would be compensated for it. If you truly believe in the value of art, you’ll fight for the artists. One does not exist without the other.

      Mr. Prince is nothing more than a thief. Whether he offered compensation or not, he overextended his hand and because of his fame, won the courts’ approval. The problem and what apparently the courts have failed to realize, is that without Cariou, Prince’s “appropriation” would be nonexistent. Further, no one can look at Cariou’s work on the Rastas without thinking of Prince’s alterations. The damage is done. He may very well have ruined Cariou’s reputation.

      • I’m not looking to have my way I’m just making a statement. If copyright works how can Richard Prince get away with this, and he will. This whole thing is ridiculous how can you not see Prince used someone else’s work to create his own? But he did create something new which brings us full circle.
        I think the real art here is that Prince has us all talking and getting many people who never would have seen this work to see it? Not only does he manipulate others work but manipulates the art / photography world and creates more value for his work,kinda genius maybe?
        Please folks I’m not taking sides I’m just observing and asking questions.

        • Not idiotic at all Kevin, I tend to agree. The times it does work is when one side has way too much to lose to take a chance or if they simply have integrity. In my opinion the laws do some good but not enough and not always in the right way. There is no question that it’s going to get more and more convoluted. Unless attention is paid to changing the laws they will become less and less effective for you and I.

          My blood used to boil when I’d hear Larry Lessig’s name. Over time though, I’ve come to agree with more and more of his argument.

      • where does it say that cariou’s rep is ruined?

        why can’t you hold two different ideas in your head at the same time?

  15. I am wondering if all of these judges are living in Colorado now and smoking it up while making a decisions that make no sense what so ever at all. Their interpretation of the meanings of fair use fall far from the standard.

    Their decision nullifies copyright protection and provides greater ability to have others like prince steal what they desire without any repercussion. I still cannot fathom the decision. To hell and a hand basket maybe?

  16. DJ’s who “sample” music without permission, are NOT musicians. They did not do the work. They are NOT artists. A parrot can NOT talk, it can mimic what someone says. I have so many conversations with people who worship DJ’s, as if they had any original talent. Now, if they have talent enough to remix an artist’s original music work, with permission/collaboration, and record it, that’s a different story. I guarantee you that, if they recorded other artists work recognizably, without permission, they would get sued. But they make their money by just playing it at venues. Eventually, artists will get together and sue, because there’s a lot of money in touring.

    • There was an article in the NY Times, I think last year, about people who’s job it is to drop in on restaurants and see if they are playing music without licensing it. Their job it to get licensing agreements from restaurants for using the music.

  17. This is an interesting topic for me right now. I recently began a personal project called TAG NYC where I’m exploring and combining 2 of my favorite things; New York City Landmarks and NYC Graffiti. I have shown them to a number of people and galleries and now have them asking me to make them available for purchase. Currently graffiti is a very grey area in the legal copyright world. What do you think? Is the use of this graffiti fair use? I believe my pieces demonstrate much more artistic originality than this case and I’m interested in other peoples’ thoughts on it

    TAG NYC:
    http://jryanroberts.com/personal/tag-nyc/