Two years after a U.S. District Court decision that sent shock waves through the contemporary art world, the Second Circuit Court of Appeals has reversed that earlier finding that Richard Prince infringed the copyright of Patrick Cariou. Instead, the appeals court ruled that all but five Prince works at issue were fair use under the Copyright Act, remanding the case to re-analyze those five works. It is as dramatic a win for appropriation art as the lower court decision was a chill on that art.
The appeals court also made final determinations about fair use without giving the District Court—the usual arbiter and finder of factual determinations—the chance to play that role under the new guidance of this opinion. A dissenting judge (Clifford Wallace) made some excellent points that the Second Circuit had perhaps overreached in drawing critical lines where it is perhaps not so well suited to do so.
Nonetheless, the appropriation art community weighed in as amici curiae to advocate for this result, including numerous museums, the Andy Warhol Foundation, and Google. Given the procedural posture, the court also made some likely unintentional comment on the nature of visual analysis. Under the standard announced, Cariou and Prince might both dispute the facts surrounding the intent of the respective artists—concerning, for example, the target audience. If that is so, summary judgment—a ruling that no facts material to the legal analysis are in dispute—is premature and a contested trial must be held. The Second Circuit undertook to analyze, really without context, only the images themselves. As any student of art history can tell you (and it is ironically often overlooked), untainted visual analysis is essential to finding the meaning of a work, but it is hardly exclusive.
In 2007, Prince— a well known “appropriation” artist—exhibited a collage entitled Canal Zone, which consisted of 35 photographs from Yes, Rasta (a 2000 book by photographer Patrick Cariou about the six years he spent with the Rastafarian community in Jamaica), torn and pasted to a wooden board. Prince exhibited and sold other works through Gagosian, which showed a total of 22 of Prince’s 29 Canal Zone series in late 2008, all of which used portions of Yes, Rasta images. Prince painted over some Cariou photographs, used parts of some, and all of others.
Cariou sued for copyright infringement, as the holder of the copyright in his Yes, Rasta photographs. Gagosian and the other defendants argued that either Cariou’s work was a “mere compilation” (which, like phonebooks, cannot be copyrighted) of its subjects (the Rastafarians), or alternatively that Prince’s work was sufficiently transformative that it fell within the Copyright Act’s permitted “fair use” allowing use of otherwise copyrighted works.
In 2011, the District Court found for Cariou, writing with respect to the compilation argument, “[u]nfortunately for Defendants, it has been a matter of settled law for well over one hundred years that creative photographs are worthy of copyright protections even when they depict real people and natural environments.” The lower court rejected the defendants’ fair use arguments out of hand, and ruled that the market for Cariou’s original work had been damaged (citing cancellation of a particular show). The District Court focused on Prince’s admitted non-interest in the original meaning of the Yes, Rasta photographs. Prince’s intended comment, the District Court found, was on the work of other artists, like Picasso, Warhol, Cézanne and de Kooning, that is, a comment on the medium (collage) rather than the appropriated work. Thus, it provided no transformation of Cariou’s photographs, nor did it provoke any discussion of the themes of Cariou’s works in a way that could be considered fair use. The District Court contrasted examples where advertisements were used to comment on the role of advertising in society. Given the failure of the fair use argument, the court was particularly concerned with their adverse effect on the market for Cariou’s paintings (commerciality) in finding infringement.
In the two years since the District court decision, artists, museums and galleries involved in any appropriation art have been in a precarious position. The subjective inquiry into an artist’s reason for appropriation is a sensitive conversation, and often one without a clear answer. For anyone of limited resources, the safest course is to stay away, the very chilling effect that Prince argued was in play: if an artist or museum is involved with a work whose intended commentary is rejected as insufficiently transformative, they faced punitive damages because their intent to comment reveals their awareness of the original work.
The Second Circuit opinion today is as sweeping as the lower court’s, but in the opposite direction. It noted that the first of the four “fair use” factors is the most important. Namely, in considering the “purpose and character” of the secondary use (the words of the statute), is the old work “transformed in the creation of new information, new insights, new aesthetics, new insights and understandings”? Rather than confine fair use to criticism, comment or parody, it must also extend to “new expression, meaning, or message.”
Thereafter, the Second Circuit explicitly analyzed the visual images side by side. Against this standard the Second Circuit found as a matter of law that twenty five of the works by Prince were clearly transformative. They contrast “crude and jarring” appearance with Cariou’s “serene” photographs of “natural beauty”, as well as palette, scale, and media differences.
The Second Circuit also overruled the District court’s reliance on Prince’s own testimony and it imposition of a requirement that the new work comment critically on the copied work (only or primarily). Although Prince’s disavowal of any particular purpose was unusual, the appeals court held, it did not strip Prince of a fair use defense; Prince was thus not required himself to claim any particular fair use purpose.
The opinion was less concerned with the commercial nature of Prince’s work, ruling that it is a factor to be applied with caution, because “Congress could not have intended a rule that commercial uses are presumptively unfair.”
The Second Circuit was not impressed with the alleged damage on the market for Cariou’s work, either, finding fault with the District Court’s reliance on the cancelled show. The proper analysis, according to the Second Circuit, is whether the target audience for the two categories of works is the same. Here, the collectors interested in the works are different, according to the Court.
With regard to the “amount and substantiality” of the copying, the Second Circuit, perhaps surprisingly, minimized this as well. Although much of the area of the Cariou photographs is obscured, it seemed a straightforward conclusion to say that they had been copied wholesale.
Thus, the appeals court vacated and ruled for Prince as a final matter (more on that in a moment) that twenty five of the works do not infringe Cariou’s copyright. It remanded to the District Court to reanalyze whether Graduation, Meditation, Canal Zone (2008), Canal Zone (2007), and Charlie Company satisfied the test now articulated. The Court felt that “it can not say with certainty at this point whether artists present a ‘new expression, meaning, or message.’”
Clifford Wallace, a judge from the Ninth Circuit Court of Appeals, was sitting by designation on the case. He has made some compelling points in his dissenting opinion. Wallace argued that the consideration of fair use of all thirty works should go back. As he pointed out, new evidence or expert testimony might be relevant in view of the new standard. Somewhat critically, he accuses the majority of “short-circuit[ing] this time-tested search for a just result under the law. I would not apply the shortcut, but would set aside the summary judgment, remand the entire case to the district court, and allow the district court to analyze material evidence under the proper standard.”
Wallace also put his finger on the most difficult thing about a case like this: “while I freely admit that I am not an art critic or expert, I fail to see how the majority in its appellate role can ‘confidently’ draw a distinction” between the works found to be fair use, and those that were not.
Today’s opinion clearly is a relief for appropriation artists and those who exhibit or sell their work. As nervous as they might have been two years ago after the District Court ruling, artists whose work is appropriated may today feel equally unsure about their ability to police their copyright.
