Case Name: Cariou v. Prince
Citation: 714 F.3d 694 (2d Cir. 2013)
Topic: Copyright & Fair Use
In 2000, Patrick Cariou, a professional photographer, published a book of portraits and landscape photographs titled "Yes Rasta." Richard Prince, a well-known appropriation artist, altered and incorporated a number of Cariou's photographs into a series of paintings and collages titled "Canal Zone," which Prince exhibited in 2008 at New York’s Gagosian Gallery. In 2009, Cariou sued Prince, the Gagosian Gallery, Lawrence Gagosian, and Rizzoli International Publications, Inc. in the United States District Court for the Southern District of New York for copyright infringement. In response, the defendants raised the defense of fair use. The district court ruled in favor of Cariou, holding that Prince's work was not fair use because it did not comment on or critique the original photographs. It ordered the defendants not to infringe upon Cariou's copyrights and to deliver all of Prince's unsold "Canal Zone" works to Cariou for him to destroy, sell, or otherwise dispose of. The district court also found the Gagosian defendants liable for contributing to and assisting Prince's copyright infringement.
On appeal, the Second Circuit reversed the lower court's ruling and held that most of Prince's "Canal Zone" works were fair use for several reasons:
In order to be fair use, a secondary use must transform the original by employing it in a different manner or for a different purpose than the original in order to produce a new expression, meaning, or message. A secondary use does not need to comment on or critique the original in order to be transformative as long as it produces a new message. In this case, while Cariou's book of 9 1/2" x 12" black-and-white photographs depicted the serene natural beauty of Rastafarians and their environment, Prince's work featured enormous collages on canvas that incorporated color and distorted human forms to create a radically different aesthetic. Therefore, even though "Canal Zone" did not comment on or critique "Yes Rasta," the court still held that it was a transformative fair use of Cariou's photographs.
Whether or not art is transformative depends on how it may "reasonably be perceived" and not on the artist's intentions. Even though Prince expressly stated he did not "have a message," the court still found that most observers would see Prince's "Canal Zone" as having a radically different purpose and aesthetic than Cariou's "Yes Rasta" and that this was enough to make the work transformative.
Even if a secondary use damages or destroys the market for the original material, it can still be fair use as long as its nature and target audience are different from those of the original. Here, Prince's artworks were displayed at highly successful art galleries and sold for $2 million or more to high-end art collectors. In contrast, Cariou original book of photographs enjoyed only limited sales, for which he was paid a total of $8,000. Although one gallery owner had cancelled an intended exhibition of Cariou's work, she did so not because of Prince's show itself, but because she mistakenly believed that Cariou was already involved with Prince's exhibition at the Gagosian and that he would be unwilling to do another exhibition of his work with a smaller gallery. As a result, the Second Circuit found that there was no evidence that Prince's transformative use had touched, much less usurped, the market for the original photographs.
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