US court rules in favour of Richard Prince in copyright appeal
A three-judge panel finds that most of the works in the artist’s “Canal Zone” series, which include appropriated images of Jamaican Rastafarians by the photographer Patrick Cariou, are “transformative”
By Julia Halperin. Web only
Published online: 25 April 2013
The US Court of Appeals has largely overturned an earlier ruling in the case between Patrick Cariou and Richard Prince, a copyright decision that lawyers say has broad implications for artists who work with appropriated material. A three-judge panel ruled this morning that the District Court Judge Deborah Batts erred in her 2011 decision, which found that Prince’s “Canal Zone” series inappropriately borrowed from Cariou’s photographs of Jamaican Rastafarians.
The appeals court concluded that 25 of Prince’s works sufficiently transformed Cariou’s material to qualify as fair use. Prince’s images “have a different character” and “employ new aesthetics with creative and communicative results distinct form Cariou’s”, Judge B.D. Parker wrote in the court’s 23-page decision. He added that Prince’s dealer Gagosian Gallery and its owner Lawrence Gagosian, originally deemed partially liable for Prince’s infringement, may no longer be held responsible for those works.
The case was not an unequivocal win for Prince. The decision over the five remaining works in his “Canal Zone” series—including the oft-reproduced Graduation, a collage depicting a man holding a blue guitar—will be turned back over to the District Court, which will reconsider whether or not they infringe on Cariou’s copyright.
In its decision, the appeals court analysed the materials, size, and mood of Prince’s “Canal Zone” series. They opted to pay less attention to Prince’s own statements about his artistic intentions. “Rather than confining our inquiry to Prince’s explanations of his artworks, we instead examine how the artworks may ‘reasonably be perceived’ in order to assess their transformative nature,” Judge Parker wrote.
As part of the original ruling, Judge Batts granted Cariou the right to destroy the 21 “Canal Zone” paintings that had not already sold, each valued at over $1m. The appeals court reversed that injunction, which Judge Parker compared during oral arguments to “something that would appeal to, you know, Huns or the Taliban.” Collectors who purchased "Canal Zone" paintings, including the hedge fund billionaire Steven Cohen and the collector and gallerist Adam Lindemann, will now be able to display the works freely as long as they are not among the five works still under consideration by the court.
Though the three-judge panel was in agreement on the majority of the ruling, Judge John Wallace wrote a dissenting opinion arguing that the court should not ignore Prince’s own comments about his artistic intentions and attitudes toward fair use. “Indeed, while I admit freely that I am not an art critic or expert, I fail to see how the majority in its appellate role can ‘confidently’ draw a distinction between the 25 works that it has identified as constituting fair use and the five works that do not readily lend themselves to a fair use determination,” he wrote.
Josh Schiller of Boies, Schiller & Flexner LLP, Prince's law firm, says in a statement that he looks forward to presenting evidence that the remaining five works fall under fair use. Quoting from the judges' decision, he says the paintings "move 'in a different direction from Cariou's classical portraiture and landscape photos,' contain 'key differences in those artworks compared to the photographs they incorporate,' and appeal to an entirely different audience and 'to an entirely different sort of collector than Cariou's'."
UPDATE: Gagosian Gallery released a statement saying it is "extremely pleased with the court's ruling. This is a positive decision for all artists worldwide".
"I don't think this kind of standard offers much in the way of predictability or guidance to artists as to what is permissible," says Dan Brooks, Cariou's lawyer. "Some works that fall on either side of the line are virtually identical to each other." The ruling "seems to give license to famous artists who sell paintings for millions of dollars to hedge fund managers carte blanche to steal from other people." He said he had not yet determined whether his client would appeal to the US Supreme Court.
An analysis of the implications of this case will appear in our June print edition.
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