This article originally appeared in the 5.2.13 issue of Metroland
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
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.
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.
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.
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!
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.
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
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
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”.