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Nail in the Coffin for Cariou v. Prince

by Mostafa Heddaya on November 13, 2013

canalzoneprince

Richard Prince, “Canal Zone” (2008) (image via Art in America)

Richard Prince, J.D. Salinger fan and one-half of the traveling legal circus Cariou v. Prince, had the copyright charges levied against him permanently waved away yesterday by the highest court in the land. In its Tuesday session, the Supreme Court of the United States denied Patrick Cariou’s petition for a writ of certiorari, finally ending the captivating legal saga that has enriched the public discourse on notions of originality many legal professionals.

A writ of certiorari allows the Supreme Court to hear a case from a lower court, in this situation the US District Court of Appeals for the Second Circuit, and their decision to deny Cariou’s petition for the writ effectively ends this line of litigation. The Second Circuit had found in favor of the defendant, Richard Prince, in its April 25 ruling. A similar case, 2006’s Blanch v. Koons, was also decided in favor of the defendant Jeff Koons, who argued that his appropriation of Blanch’s images was a transformative use consistent with his artistic practice. Prince’s defense against Cariou’s suit successfully echoed that reasoning, though the circuit court’s partially dissenting opinion, penned by Judge John Clifford Wallace, expressed some doubts about the court’s ability to enforce with any degree of aesthetic authority its “reasonable observer” test for transformative use.

Those interested in further belaboring the matter may want to consult the (now irrelevant) amicus brief filed with the Supreme Court by the New York Intellectual Property Law Association in support of Cariou’s petition.

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  • garymphoto

    I hate stories like this that presume we’ve all been hanging on every court transcript. Especially when it’s “the upper court denied the reversal of the challenge to the appeal of the revised suit” mumbo-jumbo. What does it mean now that it’s been settled?

  • Den Hickey

    When Prince himself admits his work was meaningless it doesn’t really matter if someone else can find merit in it. He didn’t intend for it to be anything of artistic merit, thus it was indeed copyright violation. He won basically because he was more famous and had more money to fight this.

  • punktoad

    The telling point may be that there is no authoritative “reasonable observer” of aesthetic transformation.

  • bigal00004

    Actually, it still has to go back to the district court to determine whether 5 of Prince’s paintings are fair use.

    • Mostafa Heddaya

      You’re completely right — but that’s mostly a procedural matter, I think, and it’s mentioned in my hyperlinked piece on the 2nd Circuit ruling and partial dissent.

    • Kim Matthews

      How could this plagiarism possibly be construed as fair use? What a sham.

  • Jeffrey

    Anyone wonder what the ramifications of this could do to the fabric of creativity?

  • jarcanskate

    It seems like R.Prince is taking advantage of a natural gap in our ability to reason through competing ideas of artistic freedom and protection of intellectual property. There is now a sort of endless loop where Prince’s artistic freedom is dependent on his rights to use available images, even if that means infringing upon another artist’s rights.

  • Willie Kohler

    Art is not about fairness nor is it inherently moral (19th c. English art theory fallacy). Tricksterism and theft are archetypal to artistic process. Get over it.

    • Dawndew

      wait till this happens to you and especially after you have spent several years working on a body of work, then tell us how you feel about someone elses “process” processes you.

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