One of the major cases about copyright infringement has recently been in session in one of the federal courts of appeal in New York. The case features a well-known photographer, Patrick Cariou, against a famous appropriation artist, Richard Prince. The main argument in this case was about how exactly fair use interpreted in a court. It also seeks to clarify whether there is a provision in the law for works that have copyrights to be re-purposed for the development of new works, which are distinct or different from the copyrighted work even when they refer, criticize, or even comment about the original work.
Many photographers have definitely been following this case with baited breath since the outcome will definitely set new parameters about how far original works of photographers are usable by appropriation artists without seeking permission. The arguments in this particular case therefore pitted the interests of two different classes of visual artists against each other: photographers versus appropriation artists. This is because appropriation artists mainly use photographs as a raw material for the production of their works (Kutcher 145). The main reason why appropriation artists use photographs is that they are easily accessible, plentiful and are under less protection from copyright laws than other visual work types.
In the case, the defendant Mr. Prince honestly admitted using the book ‘Yes Rasta’ by Cariou to copy forty-one Rastafarian images. He then used these images without permission to develop Canal Zone, which was a set of paintings and collage. Prince painted guitars and gas masks over the Rastafarians and added oversized hands and then pasted them on other images of male torsos or naked women together with other alterations. Prince then exhibited the paintings in his New York City gallery, Gagosian. He sold a considerable number of them for a rough amount of $10.4million (Walters 57). In his statement, Richard Cariou claimed that Prince’s work did not meet the fair use doctrine terms, which itself is an exception to the law of copyright.
After an engaging battle, the court finally ruled in the favor of Richard Cariou. Deborah Batts, the presiding judge argued that Prince’s work did not meet the fair use terms because they did not transform the original works sufficiently and Prince was not planning to comment on them. The judge also stated that the gallery that exhibited the paintings acted in bad faith for showing and selling the paintings derived from copyrighted material without seeking permission.
The ruling has captured the attention of the photography world. There is a wide division between photography experts on whether the court gave a proper definition to the terms of fair use. Some argue that the court should not be reliant on artist’s words about the intent of their works to determine the doctrine of fair use (Matthews 96). This is because different users have different meanings that can interpret the work differently.
Therefore, if new work occupies a market niche different from the original and if its perceived artistic statement differs from the original work, then it has met the terms of fair use. They say that a particular work has employed fair use if it adds a new feature that has a different expression, message, purpose, or meaning from the copyrighted work (Georges 46). In his defense, Prince said that his works in the Canal Zone satisfied the fair use criteria since it differs in meaning from the works of Patrick Cariou. After the ruling he claimed that the court should analyzed his paintings individually and not as a group to determine the extent of copyright infringement.
He stated that the art of appropriation is in itself fair use, with no regards to whether the secondary artwork refers or connects in any specific way to the work of the original photographer. In his depositions, Prince clearly admitted that he did not comment on Cariou photographs and dismissed them as a plain facts complication arranged with minimal creativity. He said that he merely used Cariou works as a raw material.
On the other hand, supporters of Cariou argued that Prince’s works should have criticized or commented on the original work for them to constitute fair use. The law clearly states that fair use came into existence for the purposes of commenting, criticizing, teaching, news reporting, research and scholarship (Duhamel 47). They claim a proper understanding of the law gives incentive to artists to develop new works that are beneficial to the society by preventing the unauthorized use of copyrighted work.
Another argument brought forward by Cariou was that there is no definite boundary for creating new works from copyrighted work and this would therefore effectively lead to the evisceration of copyright owner’s rights. The random taking of copyrighted works with no proper justification and using them to develop secondary works that do not refer to the original is not bound to the legal fair use terms (Dexter 87). What the secondary developer has simply done is creating a derivative work that is extremely breach in nature.
After the ruling in the lower court, there was a huge debate on whether the court made an error with its conclusion that Richard Prince’s work failed the test of fair use just because it did not criticize or comment on Cariou’s work in any way (Dexter 108). It was a difficult question that could be sidestepped by the appeal court should Prince decide to appeal the ruling.
Richard Prince submitted his appeal to the United States Court of Appeal in a case heard by three judges. Cariou tried to push for the dismissal of the appeal the appeal claiming that it had no legal grounds. The three appellate judges however ruled that the appeal hearing should proceed since there remained a controversy that was addressable by the court.
At the core of the appeal was the assertion that an appropriation artist is legally required to explain his or her work meaning in hindsight. Another point of appeal involved Cariou’s claim that he received damages because of the appropriation of his works by Richard Prince. A testimony by another gallery owner in New York showed that she was negotiation with Cariou to exhibit his works. However when Gagosian displayed ‘Canal Zone’ she changed mind (Kramer 45). The outcome of the case is still pending. Should the case proceed to the Supreme Court there are a number of ways that are employable come up with an appropriate decision.
First, the supreme judges could refer to previous cases of the same nature to see how they were decided. An example would be that of Koons vs. Blanch (2005). In this case, Jeff Koons, an appropriation artist claimed that he considerably altered a Gucci advertisement meaning previously photographed by Andrea Blanch (Wesley 45). Koons made a sufficient alteration by only taking the legs of one woman among the four pictured and then inverting them.
The court could still decide to the task to a selected jury if the judges do not feel inclined to analyze and write reports on all the pictures or when they feel that they are not qualified to do so. The decision of the jury, which is comprised of common folk is undergoes approval by the judges and is then passed as judgment (Bonds 20). The other method that is usable by the court would be to send the case back to the lower courts if the judges conclude that the lower court judge did not apply the correct test in the course of her decision-making.
It is therefore up to the Supreme Court judges to decide which method they deem appropriate and that will enable them to make a proper and firm decision. Overall, many artists anticipate the decision that will be reached since it may be used in future art copyright court cases to determine the correct terms of fair use.
Duhamel, Bill. “Panel of judges hears oral arguments in Richard Prince copyright appeal” The Art Daily 24 May 2007
Georges, Andrew. "Art Battle" New York Times 21 May 2012:45-46
Walters, James. "Photography vs. Appropriation" Art Weekly 20 Nov. 2012: 56-57.
Kutcher, Dana. "The Art of Appropriation” Boston Art Magazine Mar.2011: 143-48.
Matthews, Robert .Photography Art, New York, Egan Publishers.2011
Dexter, Mark. "How Prince vs. Cariou could weigh out" The Art Newspaper, Art Masters 16 Aug, 2012.Web, 9th December 2012
Bonds, Sherlock, "Prince, and Cariou" Kansas City Times 21 May 2012:17-24.
Wesley, Jude. "Richard takes art case to court of Appeal" Manhattan Art Daily 21 May 2007:45-46
Priors, Mary. "The Curios case of Cariou" L.A times 20 Nov. 2012: 56-57
Kramer, Arnold. "Judge rules in favor of Cariou" Facts of Art Daily 21 May 2007:45-46