Should it be considered fair use for artists to take a photographer’s work and transform it for profit?

In Cariou v. Prince, 714 F.3d 694 (2nd Cir. 2013), the U.S. Court of Appeals for the Second Circuit recently looked at this issue and answered, “yes”. Well, at least they reversed the lower court’s judgment in part, vacated that judgment in part, and remanded it in part. I understand this is legalese, so for now let’s just say that the Second Circuit said “yes” even though that’s not entirely accurate.

Today we’re looking at the Cariou-Prince case, which has a lot of people in the art community quite upset. At the end of this article, you get to play lawyer so bare with me until then.

Things in the law often get fairly technical and my goal in writing this article is going to be to put things in terms anyone can understand so that you can answer the question posed in the title of this post for yourself. So let’s back up.

Some background on what we’re dealing with

In 2000, a man named Patrick Cariou published a book entitled Yes Rasta, which consisted of classical portraits and landscape photos that he took while he was living among Rastafarians in Jamaica. Cariou’s publisher, PowerHouse Books, Inc., printed 7,000 copies of Yes Rasta and by January 2010 was only ever able to sell 5,791 copies. Mr. Cariou received just over $8,000 for this. Cariou holds the copyrights to the photographs in Yes Rasta. More on copyrights later, but let’s move onto the other guy in our story.

Richard Prince is a well-known appropriation artist, with his work dating back to the mid-1970s. Per Prince’s deposition, he describes his artwork as, “completely try[ing] to change [another artist’s work] into something that’s completely different”. Regardless of your opinion on Prince’s artwork, it is quite popular and his pieces are frequently displayed in big-name museums. To briefly summarize the events leading to tension between Mr. Prince and Mr. Cariou, Prince cut out photographs from Cariou’s Yes Rasta book and painted them or juxtaposed them with other images.

When sales of Prince’s works at the Gagosian Gallery in 2008 topped $10 million, Cariou sued for copyright infringement. In response, Prince raised a fair use defense.

The second circuit provides an appendix of the alleged infringing works by Prince along with the originals of Cariou here. However, just to illustrate, take a look for yourself below at an example of one of the original Cariou photographs and the transformed Prince artwork side-by-side:
Cariou v. Prince

On the left is Cariou’s photograph from Yes Rasta, page 118. On the right, Prince’s Graduation.

In a nutshell, what are the legal arguments these people have?

Cariou owns the copyright to his photographs. As a copyright owner, he has the exclusive right to prepare derivative works based on his copyrighted works. So, Cariou argued that Prince’s artwork was simply presenting his original copyrighted photos in a different way and that Prince infringed his copyrighted photos by clearly preparing derivative works without permission.

Prince argued fair use of copyrighted material. As an exception to the general rule on exclusive rights granted by copyright law, section 107 of the Copyright Act spells out provisions for fair use of copyrighted material. Purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, are not copyright infringement. There are four factors to be considered in a determination of fair use:

  1. the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
  2. the nature of the copyrighted work;
  3. the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and,
  4. the effect of the use upon the potential market for or value of the copyrighted work.

More specifically, Prince argued that his artwork was transformative of Cariou’s photographs and, accordingly, did not violate Cariou’s copyrights. Prince expressly stated that he was not commenting on Cariou’s photos, rather he had “transformed” them into something of higher artistic value and that this was fair use.

What happened in the lower court?

In 2011, District Judge Deborah Batts ruled in favor of Cariou. Primarily, the court’s judgment was such because “Prince did not intend to comment on Cariou, or Cariou’s Photos, or on aspects of popular culture closely associated with Cariou or the Photos when he appropriates the Photos”.

Generally speaking, this means the Court was looking at the preamble language to Section 107 of the fair use doctrine and did not buy the argument that Prince’s works transformed the photographs into something of “higher artistic use”. To this court, transformative fair use meant it must “comment” somehow on the original. Moreover, Prince made quite a profit on something that in certain circumstances he didn’t change that much and that did not help his case with the district court.

The Court thereafter issued some pretty serious injunctive relief for Cariou, stating that Prince (and the others involved in the lawsuit, mainly the art gallery and its owner) were ordered to “deliver up for impounding, destruction, or other disposition, as [Cariou] determines, all infringing copies of the Photographs, including the Paintings and unsold copies of the [Prince exhibit], in their possession”. In sum, this was a big time win for Cariou and other photographers.

What happened on appeal?

As stated above, in April of 2013, the U.S. Court of Appeals for the Second Circuit reversed the decision of the lower court, which meant a win for Prince. According to the court of appeals, the district court’s criterion as too narrow. All that was required for fair use in this matter was that a reasonable viewer find the work “transformative”.

The court of appeals then attempted to define the meaning of transformative fair use. Citing the United States Supreme Court in Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994), the court of appeals reminded us that at the heart of what we should ask in a fair use determination was, “whether the new work merely ‘supersedes the objects’ of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning or message[,]…in other words, whether and to what extent the new work is transformative…. [T]ransformative works…lie at the heart of the fair use doctrine’s guarantee of breathing space…”

According to the appellate court, the requirement imposed by the district court that Prince’s work somehow “comment on, relate to the historical context of, or critical[ly] refer back to the original works” was in error.

Confusingly, the court declined to explain exactly how transformative a piece of art must be in order to be fair-use-acceptable-transformative. The appellate court even said things like “our conclusion should not be taken to suggest, however, that any cosmetic changes to the photographs would necessarily constitute fair use” and “a secondary work may modify the original without being transformative”. Indeed, this ended up with five Prince works that the appellate court could not make its mind up about (as to if they were fair-use-acceptable-transformative) being sent back down to the district court on remand.

So how are we supposed to determine how much transformation is needed in order for it to be fair use?

Well, we can take away a few things from this case. We know that mere cosmetic changes to photographs are not going to be transformative enough to be fair use. We also know that very substantial changes are likely to be transformative enough for fair use. This still leaves plenty of gray area for argument in the law. Yet, this murky scenario is the exactly where the district court will find itself when dealing with the five Prince pieces on remand.

Per the Second Circuit, the five Prince pieces “do not sufficiently differ from the photographs of Cariou’s that they incorporate for us confidently to make a determination about their transformative nature as a matter of law. Although the minimal alterations that Prince made in those instances moved the work in a different direction from Cariou’s classical portraiture and landscape photos, we can not say with certainty at this point whether those artworks present a ‘new expression, meaning, or message'”.

So, now I invite anyone who wishes to play lawyer or judge to do so with the five Prince pieces that the appellate court could not decide on. Ask yourself whether or not these are fair use or copyright infringement given the standards discussed above (again, the standards are fair use under the Copyright Act and the minimum reasonable viewer transformation test per the appeals court).

Is this the type of artwork that touches the heart of the fair use doctrine? Or, are these simple cosmetic changes? To assist you in your judgment, use the court’s appendix to also review the Cariou originals.

Number OneCanal Zone (2008)

Canal Zone, 2008, by Richard Prince

Canal Zone, 2008, by Richard Prince

Number TwoCharlie Company (2008)

Charlie Company, 2008, Richard Prince

Charlie Company, 2008, by Richard Prince

Number ThreeCanal Zone (2007)

Canal Zone, 2007, by Richard Prince

Canal Zone, 2007, by Richard Prince

Number FourMeditation (2008)

Meditation, 2008, by Richard Prince

Meditation, 2008, by Richard Prince

Number FiveGraduation (2008)

Graduation, 2008, by Richard Prince

Graduation, 2008, by Richard Prince

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