Appropriation artist found to have infringed copyrights after failing to show transformative use
By Matthew Becker – Edited by Chinh Vo
Cariou v. Prince, No. 08 Civ. 11327 (DAB) (S.D.N.Y. March 18, 2011)
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In a closely watched copyright case, the United States District Court for the Southern District of New York granted summary judgment for the plaintiff, Patrick Cariou, ruling that the appropriation artist Richard Prince, in conjunction with the Gagosian Gallery, infringed Cariou’s copyrighted works.
The Southern District held that Prince’s works, paintings and collages that incorporated significant portions of Cariou’s published photographs, were not entitled to defense under the doctrine of fair use. Most relevant in this analysis was a consideration of the purpose and character of the use, with a focus on whether Prince’s works were “transformative,” requiring that they “in some way comment on, relate to the historical context of, or critically refer back to the original works.” The court concluded from Prince’s testimony that he did not have an interest in the original meaning of Cariou’s photographs, but simply wanted to reproduce them to send his own message, and therefore the transformative content of his works was “minimal at best.”
The NYT Arts Beat provides an overview of the case. The Art Law Blog criticizes the decision for its narrow interpretation of transformative use, noting that other cases, such as Blanch v. Koons, 467 F.3d 244 (2d Cir. 2006), have found works to be transformative even when they did not comment directly on the original copyrighted work.
After considering whether the work was transformative, the court went on to analyze the commerciality of the work, the presence of bad faith on the defendants’ parts, the nature of the copyrighted work, the amount and substantiality of the portion used, and the effect on the potential market for or value of the copyrighted work, finding that each of these factors weighed against fair use. The court also found the Gagosian Gallery directly liable – having copied elements of Cariou’s photos in the production of an exhibition catalogue – and contributorily and vicariously liable – having benefited from and knowledge of the infringing nature of Prince’s work. Towards this last point, the court made special note of the fact that “the Gagosian Defendants were well aware of (and capitalized on) Prince’s reputation as an appropriation artist who rejects the constricts of copyright law,” yet failed to ensure that Prince had obtained permission for the use of Cariou’s photographs.
Though the court granted summary judgment for Cariou on the issue of infringement, it dismissed Cariou’s claim for conspiracy under the Copyright Act, noting that the court was not aware of any Second Circuit or Supreme Court precedent for such a cause of action.
The court then enjoined and permanently restrained the defendants from infringing Cariou’s copyrights in any manner, and instructed that they deliver up all infringing works for impounding, destruction, or other disposition, as to be determined by Cariou. The cost of this order is likely to be considerable, as the works had sold for more than $10 million in aggregate.
Perhaps the most controversial element of this decision is the effect that its narrow interpretation of transformative use may have on the art world. The Copyright Litigation Blog comments that it seems the court’s ruling hinged to some extent on Prince’s failure to explain a meaning to his work that referred back to Cariou’s work (or really to express much of a meaning at all). The artist Jeff Koons was said to have learned a lesson from similar litigation losses; as the blog noted, Koons’s more recent successes have been “based in part by affidavits certifying that his art does indeed have a message more pleasing to judicial ears.”
Matthew Becker is a JD candidate at Harvard Law School, Research Assistant at the Berkman Center for Internet and Society, and Communications Editor at JOLT.