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Richard Prince: Back in Black!

Wikipedia's fair use symbol onto of two books that were part of the controversy that is Cariou v Prince. (original image via )
Wikipedia’s fair use symbol transposed onto an image of two books, each comprising the opposing works in Cariou v. Prince. (original image via artlaboratory-berlin.blogspot.com)

Wednesday night, a decision by a three-judge appellate court panel marked a turnaround in the closely watched copyright infringement case Cariou v. Prince, pitting photographer Patrick Cariou against art star Richard Prince. The appeals court found largely in favor of Prince, and vacated Judge Barbara Batt’s 2011 District Court decision, in which she held for Cariou and imposed draconian measures against Prince and Gagosian Gallery.

Batt’s order that all infringing copies of the photographs, all of the Canal Zone paintings, and all of the unsold copies were to be turned over to Cariou to be destroyed  — or not, as he wished — shocked and worried many in the art world.

In Wednesday’s decision, granting fair use to twenty five of the thirty contested works, Judge Barrington Parker stated, “[W]e conclude that Prince’s images, except for those we discuss separately below, have a different character, give Cariou’s photographs a new expression, and employ new aesthetics with creative and communicative results distinct from Cariou’s.”

A photography by Patrick Cariou (left) and the same photograph used by Richard Prince in an art work (right) (via patrickcariou.blogspot.com)
A photography by Patrick Cariou (left) and the same photograph used by Richard Prince in an art work (right) (via patrickcariou.blogspot.com)

Parker, who made his sentiments regarding the initial ruling pretty clear early on by saying that the Batts reparations were something that “would appeal to the Huns or the Taliban,” set a newly important precedent by stating in his decision that, “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.”

The ruling is seen by many art/law pundits, art professionals, and artists as an important victory for appropriation art which has seen increasing favor in the courts over the past two decades due to evolving precedents leaning toward a broader interpretation of fair use, based increasingly upon the notion of “transformative use.”

Paul Friedman, copyright expert and Of Counsel at Hull McGuire (Image via Hull McGuire)
Peter Friedman, copyright expert and of counsel at Hull McGuire (via Hull McGuire)

With the Batts decision in favor of Cariou, and a previous court decision ruling against the fair use defense in the case of Gaylord v. US: Korean War Veterans Memorial, many art/law theorists were concerned that the courts were backing away from extending fair use practices. The reversal has them all breathing a sigh of relief.

Reacting to this development, the intellectual property lawyer and author Peter Friedman told Hyperallergic:

“I feel vindicated. This decision clearly demonstrates that my view of what Blanch v. Koons was stating about this issue is correct — it finally gets rid of this idea that there’s some separate category of measure that the courts call ‘parody’ which decides fair use. Parody is just one … example of fair use.”

An examination of the most publicized fair use decisions does seem to show a gradual development in the courts as they evolve toward judgments that favor use, giving less weight to the limited monolpoly held by the copyright holder and and more to transformation, which is thought to be a crucial indicator of social value. But there are those who would beg to differ. Dan Brooks, for example.

Citing two less publicized and very recent cases, Brooks, Cariou’s attorney, explained to Hyperallergic his view that decisions had been moving toward protection of copyright based on “the fourth factor.” Brooks is referring to the enumerated limiting factors to fair use that are cited in US copyright law, and the fourth factor calls for the court to consider “the effect of the use upon the potential market for or value of the copy-righted work.” He continued, “I think the trend other than this had gone the other way. The way this was done I think is unprecedented.”

Arguing that the appellate court’s decision that Patrick Cariou’s market was not affected merely because

Dan Brooks, Cariou's attorney and partner at Schnader Harrison (image via Schnader Harrison)
Dan Brooks, Cariou’s attorney and partner at Schnader (via Schnader)

Prince’s market was “different” is a mistake, Brooks stated that in Bosley v. LFP,  and in Monge v. Maya Magazines, the courts ruled that, as pertains to the fourth factor — although the plaintiffs had not demonstrated the intention of profiting from the photos they held rights to — they retained the “monopoly privilege” that copyright provides.

Brooks also takes issue with the court’s definition of transformative: if any change in media, size, color, etc. counts as significant change in meaning or social value, “Where,” he asks, “would the practicable boundary be? The rights of the copyright holders would be completely eviscerated.”

Adding color to the entire history of copyright law is the fact that observers of precedent often see developments as moving toward copyright holder protection or fair use expansion, seeing victory or defeat in each case as it comes. In reality, copyright law is also a tennis match, and the ball is batted back and forth across the net that divides intellectual capital and free expression. Amid this perpetual volley, the law evolves and will continue to do so.

“Copyright law,” Friedman articulated, “was not handed down from Mount Sinai. Law doesn’t exist as a set of rules that hold for all time. The ideas that make it work have to change. Laws are elastic and are conditional on the particular historical moment.”

On this latest development, Friedman said, “It’s all of a piece with the inevitable result of digital media, its ease of distribution and accessibility.”

There are still five remaining Prince works, which, due to their closeness to Cariou’s original work and the use Prince made of very nearly full images, remain in limbo and will be remanded, with instruction, back to district court for a decision.

Although the 25 works that were judged fair use are now out of contention, Cariou can still pursue “indirect profits” from the Gagosian Gallery’s use of some of the photos because the gallery used Cariou’s images to publicize the Prince show. Nevertheless, the decision is bound to come as a great relief to Larry Gagosian, who is now largely off the hook for damages.

What is certain is that the reversal is great news for collectors of Richard Prince’s artwork. With the Batts decision vacated, the works in question can now be shown and sold — and perhaps even gained in value due to the interesting back story. Millions of dollars worth of artwork is now back in the black.

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