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Richard Prince, "Graduation" (2008) was widely cited throughout this case, and was one of the five pieces the Court withheld judgment on today (image via Fordham's IPLJ)

Richard Prince, “Graduation” (2008) was widely cited throughout this case (here depicted side-by-side with Patrick Cariou’s original), and was one of the five pieces the Court withheld judgment on today (image via Fordham’s IPLJ)

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.”

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

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.

Richard Prince, “Charlie Company” (2008) (image via GalleristNY)

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.’”

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Mostafa Heddaya

Mostafa Heddaya is the former managing editor of Hyperallergic.

3 replies on “Court of Appeals Reverses Ruling on Cariou v. Prince”

  1. The ins and outs of the legal case are pertinent, no doubt, and actually quite close to home for me, being an artist who works with images that have been culled from the media torrent. So I look at this case with personal interest, but am more concerned with the idealogical aspects, as seen through critical eyes; what about the quality of Prince’s work? Fair use aside, doesn’t it look a little easy? I mean, what does it take for an artist of Prince’s stature to pick up a book, like it’s carefully wrought aesthetic, and simply co-opt a bunch of images and make some basic (and in many cases predictable) “alterations” to them? Odds seem to favor that Prince himself did very little actual work here–phoning it in, as they say, to a team of assistants, who in turn phone in orders for printed canvas, stretchers, etc. I’m unimpressed. Even so-called appropriation artists are responsible for the content and relevance of our images. Intent becomes everything–the reason for using images that have been created by others is what makes such work relevant, and powerful. Prince became famous by making works that described cultural humor and social ‘ticks’, and deconstructing paradigms of our image-based culture. This recent body of work is esoteric and feels insular, if not smug. Not only does it feel irrelevant to me (compared to the punchy sleight of hand that Prince is known for) it just feels derivative–like bad work made by a stoned, dilettant art student/imitator.

    1. Prince himself admitted the work was meaningless. You may indeed cull work from the media torrent…. but I doubt you do as little to change it as Prince has and I doubt you are using the work of other artists in quite the same way.

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