Appropriation Artist Richard Prince Prevails Against Photographer at Appeals Court

A Richard Prince at Gagosian Gallery

The Gagosian Gallery exhibited this work by Richard Prince. The Helly Nahmad Gallery sold a similar work entitled "Nurse on Horseback" sold to a European collector for near its asking price of $6.5 million, reported

In a closely-followed case in the art world, artist Richard Prince has scored a big win at the Second Circuit Court of Appeal against photographer Patrick Cariou.

The ruling has the potential to become big precedent and influence the nature of art.

Cariou sued Prince for copyright infringement, alleging that the artist appropriated copyrighted photos from a 2000 book, Yes Rasta, which featured Rastafarians in Jamaica. Prince admitted taking the work, altering and incorporating them into a series of paintings and collages called Canal Zone, which he exhibited in 2007 and 2008 at the Eden Rock hotel in Saint Barthelemy and at New York's Gagosian Gallery.

When questioned during depositions, Prince probably could have defended his appropriation better on the basis of "fair use," perhaps saying that he made transformative use of the original photos. But he declined to do so, playing the role of the difficult-to-decipher artist. He said his art "do[es]n't really have a message."

Largely because of that, at a lower court, Cariou was successful against Prince, but on Thursday, the Second Circuit reversed the decision in part. The appellate judges find that 25 of Prince's 30 works are fair use and remands the remaining five for a lower judge to determine with the proper standard.

According to Second Circuit circuit judge Barrington Parker's decision, "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."

The appeals court nicely provides an example of what's in dispute in its ruling (read in full here). Here's a look:

Screen shot 2013-04-25 at 11.18.58 AM

When this case was at the District Court level, the judge there granted sweeping injunctive relief on what was determined to be clear copyright infringement. "Prince did not intend to comment on Cariou, on Cariou's Photos, or on aspects of popular culture closely associated with Cariou or the Photos when he appropriated the Photos," the judge wrote.

The Second Circuit takes a more nuanced approach to the art -- as well as "fair use," which can be an exception to a copyright owner's exclusive ability to control derivatives.

"These twenty-five of Prince's artworks manifest an entirely different aesthetic from Cariou's photographs," writes Judge Parker. "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."

The further notes that Cariou used black-and-white while Prince created colleges, incorporated color, and made other distortions.

"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."

Despite Prince's failing to more strongly argue the transformative nature of his work, the appeals court decides that what it is anyway:

"Here, looking at the artworks and the photographs side-by-side, we 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. Our conclusion should not be taken to suggest, however, that any cosmetic changes to the photographs would necessarily constitute fair use. A secondary work may modify the original without being transformative. For instance, a derivative work that merely presents the same material but in a new form, such as a book of synopses of televisions shows, is not transformative."

But the circuit judge says that Prince added "something new" in 25 of the 30 images.

As for the other five -- which are certainly important and perhaps even more so, given that future judges will be looking for guidance on how they should play art critic to determine what's transformative or not -- Judge Parker says, "Although the minimal alterations that Prince made in those instances moved the work in a different direction from Cariou's classical portrature and landscape photos, we can not say with certainty at this point whether those artworks present a 'new expression, meaning, or message.'"

Here's a look at one of the images that haven't yet been determined to be fair use or infringing:

Screen shot 2013-04-25 at 10.57.58 AM

Regarding the work above, Judge Parker says, "Prince did little more than paint blue lozenges over the subject's eyes and mouth, and paste a picture of a guitar over the subject's body... Where the photograph presents someone comfortably at home in nature, Graduation combines divergent elements to create a sense of discomfort. However, we cannot say for sure whether Graduation constitutes fair use or whether Prince has transformed Cariou’s work enough to render it transformative."

Judge Parker says that a district court is in the best position to make that determination. Also, in the ruling, the Second Circuit was asked to determine the liability of the Gagosian Gallery as an alleged contributory infringer of Cariou's work. On the 25 images found to be fair use, there is of course no liability. As for the others, that's also for a district court to decide upon remand.

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