Supreme Court won’t hear controversial copyright case
Appellate decision stands that Richard Prince did not violate Patrick Cariou’s Rasta photographs for most of "Canal Zone" series
By Laura Gilbert. Web only
Published online: 12 November 2013
The US Supreme Court, in an order issued today, has decided not to hear the controversial copyright case between the photographer Patrick Cariou and the artist Richard Prince, who appropriated Cariou’s images of Rastafarians in 30 paintings in the series “Canal Zone”.
The Supreme Court leaves standing the opinion of the Second Circuit Court of Appeals in Manhattan, which decided in April that 25 of Prince’s paintings did not violate Cariou’s copyright. A question hangs over the other five works, which the appellate court could not reach a decision on and sent back to the lower district court to evaluate.
The Second Circuit said that the standard for determining fair use depended on whether an observer would find the new use transformative of the original. It said that Prince’s manipulations of Cariou’s photographs met that test in the majority of the paintings because they presented a “crude” aesthetic that was different from Cariou’s “serene” work.
It also said that Prince’s paintings did not need to comment on Cariou’s in order to be transformative. Prince had previously testified that he did not intend to comment on the photographs, and that testimony played a large part in the district court’s decision, which had ruled in favor of Cariou.
The Second Circuit’s decision has been criticised by many lawyers who assert that it does not provide them with clear guidance in copyright questions. Cariou’s lawyer had asked the Supreme Court to review the appellate court’s standard, which he characterised as an “I know it when I see it” approach that is “necessarily subjective, arbitrary and unworkable”.
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