Wednesday, May 01, 2013


This article originally appeared in the 5.2.13 issue of Metroland.

            The New York federal appeals court issued its decision in the Cariou v. Prince case last week, and it’s a gooder.  The case involves famed (or perhaps infamed) appropriation artist Richard Prince’s series of manipulated images using Philip Cariou's photographs of Rastafarians, all done without Cariou’s permission. 

            A district court last year ruled that Prince had infringed on Cariou’s works, finding both Prince and his gallery liable for infringement, ordering the infringing works to be impounded, and scheduling a hearing to determine damages and an award of attorneys’ fees.  The court ruled on these things as a matter of law, that is, that the issues were so clear there was no need to send any questions to trial. This ruling sent considerable fear and loathing through the art world. If allowed to stand, this broad and brutal decision would render appropriation art, arguably the most significant art movement of the last 100 years, an endangered species.

            In a stunning rebuke, the appeals court reversed the ruling, and held that all but five of the thirty Prince works were, as a matter of law, protected from any claims of infringement by the fair use doctrine, and instructed to trial court to determine (using the right standards this time) whether the other five works were infringing.  The appellate court cleared up a number of things that have made navigating fair use so treacherous for so long.

            The court reminded the world that copyright law exists not to protect creators, but for the betterment of society, that too strong copyright protection can work against that goal, and that fair use protects our right to express ourselves by referencing the works of others.  Then the court lowered the boom.

            Citing some old and largely discredited caselaw, the lower court had ruled that Prince’s works could not be fair use because they did not make any comment or criticism about the appropriated Cariou photographs. The appellate court announced bluntly that no such requirement exists, and that fair use can be found if a new work simply provides a “new expression, meaning, or message,” regardless of whether it comments upon or parodies the original work.

            Then the court tackled the thorny issue that Prince, ever the provocateur, had testified in depositions that he “doesn’t really have a message” and that he “wasn’t trying to create anything with a new meaning or a new message.”  (Prince’s deposition transcript is available online, and throughout it appears that he’s enjoying being deposed more than any litigant in the history of litigation, and succeeds, over hundreds of pages, in saying almost nothing.)  The court noted that most artists in his position would fall over themselves trying to explain the transformative nature of his or her work, but Prince didn't, and the fact that Prince refused to do so didn’t matter.  What mattered was whether new meaning could be reasonably perceived. The court announced that it perceived it and held that 25 of the works were of a completely different character and employed different esthetics than Cariou’s photographs.  Fair use, bitches! Boom!

            The court then admonished the lower court for making way too big of a deal over the fact that Prince aimed to make money from his work, noting that for almost twenty years the commercial nature of a work was usually not a very important fair use factor.  Everybody tries to make money with their work.  That's how they eat.
            Then, noting that the lower court had held that Prince took more of Cariou’s work that was “necessary”, the appellate court said “[w]e are not clear as to how the district court could arrive at such a conclusion. In any event, the law does not require that the secondary artist may take no more than is necessary.”   Wow! Down goes Frazier!

            Finally, the court focused on the five works it was sending back to the district court.  These are the works you may have seen in the press, Cariou’s photos with blue blotches (referred to in the decision, oddly, as “lozenges”) over the Rasta faces and some crude cutting and pasting, like putting a Stratocaster in a Rasta’s hands.

            The court ruminated on the similarities and differences between Prince’s works and the Cariou photographs, and decided,  rather strangely, that the district court (which had created such an incredible mess in the first place) was somehow “better situated” to decide whether these were fair uses or not.   I think the legal term for this is "punt".  This probably means a trial, if this thing doesn’t settle.  That’ll be some fun.

           This is a really important decision that opens the fair use door wider than it’s ever been and provides collagists and appropriation artists of all types greater confidence to follow their muses without fear of getting sued by some jerk with Lotto fever.  Hopefully, these big general fair use ideas will finally carry over to musical works, where a couple bad decisions and a whole lot of record industry money has, for over 20 years, stifled the free use of sampling in new recordings.  I think that’s about to change.

Paul Rapp is an entertainment attorney in Western MA who’s going to the drive-in tonight and plans to fog up the windows for the “coming-soons”.


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