Art Law Report

Cariou Files Appeals Brief—Is this Case Less Transformative Than It Seemed?

Posted by Nicholas O'Donnell on January 31, 2012 at 12:19 PM

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.

Various analysis of the brief has started to come out, examples of which can be found here, here, and here.

Topics: Richard Prince, Infringement, Second Circuit, Transformative Use, Canal Zone, Patrick Cariou, Yes Rasta, Appropriative Art, Copyright, Gagosian Gallery, intellectual property

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About the Blog

The Art Law Report provides timely updates and commentary on legal issues in the museum and visual arts communities. It is authored by Nicholas M. O'Donnell, partner in our Art & Museum Law Practice.

The material on this site is for general information only and is not legal advice. No liability is accepted for any loss or damage which may result from reliance on it. Always consult a qualified lawyer about a specific legal problem.

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