In 2000, photographer Patrick Cariou published "Yes, Rasta," a collection of portraits he shot, in Jamaica, of Rastafarians living in isolated communities. Eight years later, Richard Prince showed "Canal Zone" a series of collages and paintings altering many of Cariou's photographs. This week, the parties settled their dispute out of court putting an end to years of litigation.
Alleged Copyright Infringement
Cariou sued Richard Prince, and the gallery showing the works, for copyright infringement, and Prince countered with a fair use defense, reports The Hollywood Reporter. District court Judge Batts found for Cariou holding that the fair use defense failed because the works were not transformative, that is "the new work in some way [must] comment on, relate to the historical context of, or critically refer back to the original works."
The Second Circuit Weighs in
On appeal, the Second Circuit panel disagreed with the district court's analysis on the transformativeness issue, and stated "The law imposes no requirement that a work comment on the original or its author in order to be considered transformative." Instead, the court held that the proper analysis asks "how the work in question appears to the reasonable observer." The court found that "Prince's composition, presentation, scale, color palette, and media are fundamentally different and new compared to the photographs, as is the expressive nature of Prince's work."
Ultimately, the Second Circuit found that 25 of the 30 works in question were transformative, and the court remanded for a determination on the remaining five. Judge Wallace filed an opinion concurring in part, and dissenting in part. Where he differed with the majority was that he would consider the artist's testimony in determining whether works were fair use. He would have also left it for the district court to determine whether all the pieces were transformative, noting, "I am not an art critic or expert."
The Parties Settle
The art (and tech) worlds have been waiting to see what would happen, and now this issue has come to a close -- for now. Cariou and Prince have agreed to settle, and voluntarily dismiss the case. However, future cases will not be so clear cut. Donn Zaretsky, an attorney and art law blogger told The New York Times that the Second Circuit's opinion is "a missed opportunity to really bring some clarity to this issue ... How do you decide whether something is transformative or just not quite transformative enough?" That's precisely what future litigants will be asking.
- Richard Prince: Fair Use or Derivative Copyright Infringement? (FindLaw's U.S. Second Circuit Blog)
- 2nd Circuit: Like Beauty, Fair Use Is in the Eye of the Beholder (FindLaw's U.S. Second Circuit Blog)
- Bloomberg Fair Use Defense Prevails Over Swatch Copyright Claim (FindLaw's U.S. Second Circuit Blog)