Art law Fairs USA

Prince copyright infringement case rolls on

Lawyer for photographer plans to file papers that could lay the groundwork for an appeal to the Supreme Court

Patrick Cariou, who won a copyright infringement case against Richard Prince in a federal lower court and then suffered a reversal on most points before a three-judge panel on appeal, will ask the 13-judge federal Second Circuit Court of Appeals to rehear the case, The Art Newspaper has learned. The papers will be filed on Thursday, said Daniel Brooks, Cariou’s lawyer.

A petition for a “rehearing en banc”, as Cariou’s request is called, is sometimes a prelude to an appeal to the Supreme Court.

The lower-court decision in March 2011 ruled that Prince had violated Cariou’s copyright when he used photographs from Cariou’s book Yes Rasta for a series of paintings called “Canal Zone”. That court applied a standard requiring Prince’s works to comment on Cariou’s in order to be “transformative” and thus to constitute a legitimate use under US copyright law.

In ruling on Prince’s appeal in April 2013, all three judges agreed that transformative use did not require the new work to comment on the original. Two of the judges went on to analyse the works to determine whether Prince’s paintings were transformative, and found that all but five of the 30 works were. One judge dissented, saying that such an analysis was the proper province of the lower court.

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