After the Second Circuit ruling in Cariou v. Prince, which we wrote about on this blog here, photographer Patrick Cariou felt that the decision was too subjective, calling it an “I know it when I see it” approach for determining when a work is transformative—or, in other words, when a work that appropriates copyright material has the requisite “something new” so as to qualify for fair use protection under U.S. copyright law.  Last week, the U.S. Supreme Court declined Cariou’s Petition for a review of the Second Circuit decision and the application of the copyright fair use standard.

The above artwork (resized), shows Prince’s Graduation (left) side by side with a photo from Cariou’s Yes Rasta.  A decision on transformative use for Graduation was remanded back to district court.

The Second Circuit found that 25 out of 30 pieces of artwork from Richard Prince’s collection “Canal Zone” at the Gagosian Gallery—pieces that appropriate varying degrees of elements from Cariou’s “Yes, Rasta” photograph collection—met the test for fair use. The other five were sent back to the district court for a determination there. A partial dissent questioned whether the appellate court should have opined on the transformative nature of a work without expert opinions or the opportunity for further evidence. It also questioned whether the lack of Prince’s own explanation as to a transformative purpose to his work should have been disregarded.

The continued battle in the petition briefs reflect the main arguments about fair use generally—on the one side, that it is too giving, leaving copyright holders open to rampant use of their works, and leaving online photos and images particularly vulnerable.  And, on the other side, it is not giving enough, squelching free expression particularly where an artist speaks with a language using what came before it – copyrighted or not.

Fair use is a four-part test found in 17 U.S.C. 107.  “Transformative use” is part of the discussion of the first factor: “the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes.” The seminal case on transformative use is Campbell v. Acuff Rose Music, Inc. which involved a musical parody that was deemed a fair use.   Incorporating some of the points from the Cariou v Prince dissent, Cariou argued that the Second Circuit extended the application of Campbell.  They argued that Campbell does not require a determination of whether it can “reasonably be perceived” that a work is transformative unless the defendant has explained and defended his purpose as transformative.

Among other arguments, Cariou also put forth that the Second Circuit did not weigh the four fair use factors correctly, and did not focus enough on the third factor, the substantiality of the copying.  He argued, further, that there was a circuit split in the Second Circuit’s use of the fourth factor—the effect of the use upon the potential market for the copyrighted work.  He claimed that the Second Circuit’s emphasis on the fact that Cariou had not aggressively marketed his work “overlooks the statutory focus on potential markets and conflicts with decisions of other circuits.”

Prince responded that the Second Circuit properly applied Campbell and did not create a circuit split in its treatment of the fourth fair use factor because it concluded that Cariou would not “develop or license secondary uses in the vein of Prince’s artworks.”

Both sides received considerable support from interested parties throughout the life of the case. As Cariou v. Prince now reaches the end of this appeal, for now, appropriation artists and other supporters of Richard Prince appear to have carried the day.