Sunday, March 27, 2011

Cariou v. Prince: Infringement by Appropriation Art

Photos were taken. Photos were appropriated into new art forms. Copyright infringement claims resulted.

Patrick Cariou's photographs of Jamaican Rastafarians were published by PowerHouse Press in 2000. The book contains photographic portraits of Rastafarian individuals plus images of Jamaican landscape. Following publication, the well-known “appropriation artist” Richard Prince commenced appropriating many of these photographs for inclusion in his new work. Between December 2007 and February 2008, Prince displayed at a hotel in St. Barts some 35 of the Cariou photographs that were torn out of the Cariou book and attached to a wooden backer board. Of these 35 photos, some were only partially displayed, some were fully displayed, and Prince painted over some. Prince titled this work "Canal Zone."

Spurred by further inspiration, Prince painted 28 paintings of images taken from the Cariou book. The photos contained in the paintings had been cropped, tinted, reshaped or painted over. Prince admitted using all or a portion of 41 Cariou photos in his paintings.

The Gagosian Gallery showed the Canal Zone and the paintings at its venue in Manhattan, and published a catalogue of many of the paintings, including images of Cariou's photographs displayed in Prince's studio.

Cariou sued Prince and Gagosian for copyright infringement in New York federal court (the case number is 08-cv-11327 and access to filings in this case is available through PACER). In a well-reasoned opinion (March 18, 2011) by Judge Deborah Batts, Prince and Gagosian were found to have infringed the Cariou photos.

A. Photos are Copyrightable.

Surprisingly, Prince argued that the Cariou photographs are not entitled to copyright protection because they lack creativity. He argued that the photos represent factual images of people and landscapes and, as such, cannot be considered creative. But Judge Batts aptly explained that photographs, even of real people and landscapes, are protectable under copyright. This has been the law since the Supreme Court case of Burrow-Giles v. Sarony in 1884.

B. Fair Use.

Prince further defended by arguing that Canal Zone and his paintings represent a fair use of the Cariou photographs. But Judge Batts found no fair use. Indeed, Judge Batts' opinion stands are a detailed primer of fair use analysis under copyright law. The court considered the statutory fair use factors, as described below.

1. Purpose and Character of Prince's Use of the Cariou Photographs: Transformation, Commerciality, and Bad Faith.

Judge Batts determined that the ripping of the photos from the book, and the painting of the photos, did not transform Canal Zone and the paintings into protectable creative work. Prince’s use of Cariou’s photos did not comment on, criticize or otherwise alter the expression or meaning of the photos. In essence, the court determined that what Prince was merely attempting to accomplish was to make, from his perspective, a better or higher artistic use of the photos. To accept this usage as fair use would eliminate any practical boundary to the fair use defense and would find that appropriation art is per se lawful. Judge Batts specifically refused to hold that appropriation art is per se fair use.

To underscore the lack of transformative intent, Prince testified that he did not have any interest in Cariou's original meaning in the photos, and did not have a message he intended to communicate with his art. Prince did not intend to comment on any aspect of the photos, but sought merely to pay homage to other greater painters (including Picasso, Cezanne and Warhol) and create his own beautiful artwork.

Prince explained that he used Cariou’s photos because they represent truth. He employed the Cariou photos in order to arrive at the core truth of the Rastafarians; to communicate core truths of these people and their culture – the very purpose that Cariou had in taking the photos in the first instance. From this admitted lack of transformative motive, the court found that Prince did not intend to comment on the Cariou photos or to transform the meaning or message of these photos. The court determined that any transformation that appears throughout Prince’s paintings is inconsistent and minimal at best.

While not transformative, Prince’s motive was certainly commercial. The court found that Prince's use of the Cariou photos created significant commercial value for Prince. Transactions involving Prince's work were valued in the millions.

Also of importance, the court determined that Prince acted in bad faith. Prince testified that it was not important whether he appropriated from a well-known artist or from the public domain. His staff contacted the publisher of the Cariou book but never inquired about obtaining a license to use the images. The court also determined that the Gagosian Gallery acted in bad faith in that Prince has a reputation as an “habitual user” of other people's copyrighted works, and Gagosian never inquired whether Prince obtained consent to use the Cariou photos.

2. Nature of the Work Copied.

Judge Batts found that the Cariou photographs were highly creative and the very type of work that the copyright law was designed to protect.

3. The Amount and Substantiality of the Portion Copied.

Judge Batts found that in many of his paintings, Prince copied most of the Cariou photos and, in a majority of his paintings, Prince copied the central portrait of the Cariou photos. The court determined that the amount of the Cariou work appropriated by Prince exceeded the amount needed for any slight transformative value.

4. The Effect of the Use on the Market for the Copyrighted Work.

Prince criticized Cariou for not fully exploiting his photos, and argued that Cariou should have been more aggressive in marketing his photographs. But the court observed that fair use looks at the potential for market harm both for the original work and its potential derivatives, regardless of how little the copyrighted work is presently being exploited. The court determined that it was clear that the market for both Cariou's original work and for any derivative work was being usurped by Prince.

C. Gagosian’s Direct and Secondary Liability.

The court next examined the role of the Gagosian Gallery. It determined that Gagosian was liable for direct infringement for copying, selling and displaying infringements of Cariou's work. Gagosian was also secondarily liable for vicarious and contributory infringement. The court noted that Gagosian handled all aspects of the marketing of Prince’s works and had the right and ability to ensure that Prince obtained a license for the Cariou photos. The financial benefit to Gagosian is self evident.

Judge Batts further determined that Gagosian was well-aware of Prince's reputation as an appropriation artist who rejects copyright law, but failed to inquire whether a license was obtained. The court states that Gagosian knew, or should have known, of the existence of the infringement.

D. No Right to Civil Conspiracy Under Copyright Law.

On one portion of Cariou's claim, however, the court found in favor of Prince and Gagosian. Cariou brought a claim against the defendants for conspiracy to violate Cariou's rights under copyright. But the court determined that a civil conspiracy claim is not available under copyright law. Since the copyright law already recognizes vicarious and contributory infringement, the added presence of civil conspiracy does not add anything substantive to copyright protection. The conspiracy claim was dismissed.

E. Remedies: Injunction, Destruction of Prince’s Work, Notice to Owners and Damages.

The court entered a permanent injunction against Prince and Gagosian, ordered that they deliver up for destruction all copies of Prince’s infringing works, and further notify all buyers that the Prince work is infringing and cannot lawfully be displayed. The court also set a date to consider the issue of damages, attorneys' fees and court costs.

In summary, if you operate a gallery, be cautious in dealing with an appropriation artist. And if you are an appropriation artist, strongly consider obtaining a license and do not assume that your work will be treated as fair use.

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