Today, the Second Circuit handed down its much anticipated decision in Cariou v. Prince regarding the legality of appropriation art by artist Richard Prince.

Just over two years ago, in federal district court in New York, Judge Batts ordered that paintings by Richard Prince be destroyed.  She did so on the basis that the art, which consisted of images from Patrick Cariou’s Yes Rasta book along with Prince’s own painting over the figures face (or “lozenges”) and other alterations, was not covered by the fair use defense to copyright infringement under 17 U.S.C. §107.  She reasoned that these paintings, from Prince’s series Canal Zone, could not be transformative because they did not comment on the original work, the original artist or aspects of popular culture closely associated with the two.  The ruling sent the contemporary art world into an uproar, and there was concern over the chilling effect the decision had on artist’s creativity.

Left, two photos from Yes Rasta.  Right, Richard Prince, James Brown Disco Ball, both referred in the decision at p. 6.

Prince’s paintings range from ones with slight alteration where most of Cariou’s photograph is recognizable, to others like the example above where the photos are nearly completely obscured.  In its appeal to the Second Circuit, Prince argued that Cariou’s photographs conveyed “the natural beauty of the Rastafarians’ tropical home,” whereas Prince “crudely collages the images together with torn edges and marks of transparent tape, critiquing the naïve vision of that beauty.”  And, further, that critics of Prince’s work have seen it as presenting “a post-apocalyptic world in which music, sex and drugs are culture’s surviving artifacts” in contrast to Cariou’s “romantic and reverential” photos.

Transformative Use Need Not Be Limited to Critique

The major question for the Second Circuit, then, was whether it was necessary to comment on an original work or popular culture in order to be transformative.   Some works will—and the decision made reference to the seminal Supreme Court case on fair use Campbell v Acuff Rose Music and 2 Live Crew’s parody of Roy Orbison’s “Oh, Pretty Woman” as an example of fair use clearly intended to parody the original work.  However, the Court acknowledged this is not necessarily so.  The standard has always been that “a new work generally must alter the original with ‘new expression, meaning, or message.’” (quoting Campbell v Acuff Rose Music).  The court also referred to its 2006 decision, Blanch v. Koons, in support of the standard.  In that case, the Second Circuit affirmed a finding of fair use for a collage painting by appropriation artist Jeff Koons that copied and altered part of a photograph. With that standard in mind, the Second Circuit found that in all but five of the thirty pieces of artwork, Prince’s artwork “manifest[s] an entirely different aesthetic from Cariou’s photographs.”

Five Paintings Remanded To District Court

Left, Patrick Cariou’s photograph from Yes Rasta.  Right, Richard Prince’s Graduation, referred in the decision at p. 7.

While ruling that fair use is not circumscribed to specific criticism, the Second Circuit was careful not to state that any alteration of a photograph would result in the requisite ‘something new.’  It also stopped short of finding fair use in all of Prince’s works.  The above, Prince’s Graduation, is one of the five remaining works that is now still in question.  The court acknowledged that Graduation creates a sense of discomfort in the viewer that does not occur in the original photo, but it could not say whether it constitutes fair use. The Court remanded the decision on whether these works are transformative back to the district court. To the extent that Larry Gagosian and the Gagosian Gallery, which had exhibited the works, are liable for contributory or vicarious infringement in connection with the five remaining works, that would also be decided by the district court.

Dissent Questions Court’s Authority to Judge Art

Another interesting aspect of the decision is the concurrence in part and dissent in part by Judge Wallace.  He takes issue with the entire exercise by the appellate court in parsing out which photographs convey something new and which do not.  He also sees no reason to disregard Prince’s own statements regarding the works in reviewing fair use. The Court had rejected Cariou’s argument that the fact that Prince had testified that he didn’t care about Cariou’s intent and had no real message was damming to his case.

As far as determining fair use in these specific circumstances, Judge Wallace sees this as the role of the district court, where perhaps new evidence or expert opinions would now be necessary based on the Court’s finding on the applicable standard.  He writes: “[i]f the district court is in the best position to determine fair use as to some paintings, why is the same not true as to all paintings?  Certainly we are not merely to use our personal art views to make the new legal application to the facts of this case.”

Final thoughts

Whatever your opinion about how far fair use should go in this circumstance, it is an interesting point that the Second Circuit felt comfortable assessing the transformative nature of some, but not others, of Prince’s works.  As to those remaining, we will have to wait and see how the district court decides.  If those are found to be infringing, there will remain some gray area as to degree of appropriation allowed under the law where there artist leaves much of the appropriated work intact.  Nonetheless, the decision makes clear that reports of the demise of appropriation art were greatly exaggerated.