Where do we draw the line between fair use transformation in art and derivative images that constitute copyright infringement?
In 2009, the dominant fair use question involved Shephard Fairey's appropriation of an Associated Press image for his Barack Obama "Hope" design. Fairey conceded that "Hope" was based on an April 2006 AP photograph by Mannie Garcia. The AP sued Fairey, claiming that he didn't have permission to use the photograph, and that he must offer a photo credit and compensation. Fairey settled the matter in 2011, according to Photo District News.
Now the Second Circuit Court of Appeals is considering a similar copyright infringement lawsuit between artist Richard Prince and photographer Patrick Cariou, but the stakes are much higher.
In 2000, Cariou published Yes, Rasta, a book of photographs of Rastafarians in Jamaica. In 2007, Richard Prince, an “appropriation artist,” exhibited his Canal Zone series, which featured images or parts of images from 41 Yes, Rasta photos. Prince’s works were attached to wooden backer boards and included paint over portions of the photos, reports BNA.
Cariou sued Prince, Gagosian Gallery, and Larry Gagosian for copyright infringement. (Gagosian is a major player on the New York art scene. Most of the Canal Series was displayed and marketed through Gagosian Gallery.) Prince and Gagosian responded that Prince’s use of the photographs fell under the fair use doctrine.
Judge Deborah Batts rejected their fair use defense, finding that in order for a work to meet the “transformative” prong of the fair use test, it must “in some way comment on, relate to the historical context of, or critically refer back to the original works.”
Cariou won a permanent injunction from the district court, with the option of impounding or destroying the unsold Canal Zone works. Judge Batts also ordered Gagosian and Prince to contact the current owners of Prince’s sold Canal Zone collages, and inform them that the paintings could not be lawfully displayed, according to BNA.
Last week, the Second Circuit Court of Appeals heard arguments in this case, which has drawn attention not only from the art community, but the tech world as well. (NPR reports that Google even filed an amicus brief in the case.)
The majority of Prince’s brief in the case was dedicated to the district court’s transformative use finding. Prince argued that the district court erred in holding “that a work must comment or criticize the original work in order to constitute fair use,” BNA Reports. Do you agree? If the Second Circuit Court of Appeals affirms the district court, what will it mean for the art world?