Art law News USA

Photographer to appeal to Supreme Court in copyright case

Patrick Cariou’s lawyer says he will file appeal within three months, after a New York court refuses to rehear his appropriation suit against Richard Prince

Will Cariou v Prince be heard by the US Supreme Court?

Patrick Cariou, the photographer who successfully sued Richard Prince for copyright infringement in 2008 only to have the ruling largely overturned by a higher court in April, is expected to file an appeal with the Supreme Court within the next three months. Cariou petitioned the Second Circuit Court of Appeals to rehear his case in May, but the request was denied on 10 June. His lawyer, Dan Brooks, says the next step is to file an appeal with the Supreme Court. He must do so within 90 days of the Second Circuit’s refusal to rehear the case.

The Supreme Court receives thousands of requests for review each year, and agrees to hear only a small percentage of those cases. (In 2010, it heard only 1%.) Brooks says he has “no idea” if the court will take up Prince v. Cariou. “If they think the law needs to be settled or there is a conflict between the circuits, they may agree to hear the case,” he says. Prince’s law firm, Boies, Schiller & Flexner, did not immediately respond to a request for comment. David Boies, a partner in the firm, successfully challenged California’s Proposition 8, the state’s ban on same-sex marriage, in the Supreme Court this week.

In April, a three-judge panel ruled that 25 of 30 paintings from Prince’s “Canal Zone” series transformed Cariou’s photographs of Jamaican Rastafarians sufficiently to qualify as fair use. The remaining five works have been sent to a lower court for re-examination.

Last month, Cariou petitioned the Second Circuit court’s entire 13-judge panel to reconsider the case because, he argued, the ruling contradicted earlier decisions by the same court and did not offer enough guidance about what qualifies as fair use, according to court papers. The Second Circuit court did not explain why it denied Cariou’s request.

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