Patrick Cariou has filed his much-anticipated responsive brief in the Richard Prince/Gagosian Gallery copyright infringement appeal. Cariou’s brief makes its stand on the question of transformative use. The degree to which a derivative work is transformative of a protected work is, of course, a central element of a fair use analysis about which Prince will have to persuade the Second Circuit to overturn the judgment below. In so doing, however, one starts to wonder if this case will be of less precedential value—less transformative, if you will—than it has seemed since the judgment last year.
Specifically, Cariou rightly makes much of Prince’s own testimony about a lack of intent to transform Cariou’s Yes, Rasta photographs. He challenges Prince’s formulation of transformation as an objective one (i.e. that the work should speak for itself), relying on Prince’s disavowal of an intention to alter Cariou’s works themselves, rather than simply using the earlier photographs as raw material. Interestingly, Cariou’s brief explicitly rejects the idea that the verdict is any threat to appropriative art.
Cariou has much to use in Prince’s deposition testimony. Prince rejected categorically and repeatedly any intent to comment on Cariou’s work, and the Copyright Act requires more than a mere change (i.e. transformation), it must be transformative, even if not directly a comment on the earlier work.
All this raises the prospect that a decision by the Second Circuit could affirm the lower court judgment without shifting the copyright landscape dramatically. That is to say, the appeals court could leave for another day how transformative a work needs to be and say simply that these works fail the test because of what Prince said.