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The United States District Court of Appeals for the Second Circuit handed down a 23-page decision today in the case of Patrick Cariou v. Richard Prince, in part reversing and vacating the District Court’s prior judgment in favor of Cariou.
The decision, which includes a partial dissent from Judge John Clifford Wallace, rejects the lower court’s earlier finding that 30 Prince artworks were copyright-infringing; 25 of these have now been found to “manifest an entirely different aesthetic from Cariou’s photographs” and are thus protected under fair use. The court elaborated how this difference was assessed as follows:
Where Cariou’s serene and deliberately composed portraits and landscape photographs depict the natural beauty of Rastafarians and their surrounding environs, Prince’s crude and jarring works, on the other hand, are hectic and provocative. Cariou’s black-and-white photographs were printed in a 9 1/2″ x 12″ book. Prince has created collages on canvas that incorporate color, feature distorted human and other forms and settings, and measure between ten and nearly a hundred times the size of the photographs. Prince’s composition, presentation, scale, color palette, and media are fundamentally different and new compared to the photographs, as is the expressive nature of Prince’s work…
What is critical is how the work in question appears to the reasonable observer, not simply what an artist might say about a particular piece or body of work. Prince’s work could be transformative even without commenting on Cariou’s work or on culture, and even without Prince’s stated intention to do so. 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.
This language is instructive, and the legal “reasonable observer” test’s relationship to the artist’s perception will no doubt continue to provoke fierce debate. In the remaining five cases, the court “express[es] no view” and remands the decision on those works to the lower court. These five pieces are: 2007’s “Graduation,” “Meditation,” and “Canal Zone” and 2008’s “Canal Zone” and “Charlie Company.”
Wallace’s dissent focuses on these five pieces, arguing that he rejects the majority’s distinction between them and the 25 other works. It’s a procedural rather than an aesthetic position, hinging upon what he considers to be the court’s arbitrary rejection of “what the artist might say.”
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 twenty-five works that it has identified as constituting fair use and the five works that do not readily lend themselves to a fair use determination.
Wallace would rather the Court of Appeals vacate and remand judgment on all 30 works to the lower court, which would then “take such additional testimony as needed and apply the correct legal standard.”
As far as the works in question, Prince had previously told Artnet he “painted a Picasso-inspired blue lozenge facemask directly onto the canvas on the Rastafarian’s face.” These alterations were made to original images drawn from Patrick Cariou’s 2000 Yes Rasta photobook.
We will have further commentary on these developments later today, but in the meantime feel free to peruse the decision (Wallace’s 5-page dissent appears at the end of the document), and our earlier coverage of this case and copyright matters at large. To break up the tedium of legalese, you may also want to fire up this classic jam, casually mentioned as precedent on the twelfth page of the decision: “…the rap group 2 Live Crew’s parody of Roy Orbison’s ‘Oh, Pretty Woman’ ‘was clearly intended to ridicule the white-bread original.’”