In 2011, Cariou sued Prince and won a permanent injunction and an order that Prince’s works be impounded and destroyed. In 2013 the Second Circuit reversed, focusing on the “purpose and character” factor of § 107 of the Copyright Act, or what has become known as the transformativeness test, particularly with respect to visual art. 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. I analyzed the 2013 opinion here, which I won’t repeat now. But the takeaways were that Prince’s total disinterest in his own meaning, and the troubling reliance on Prince’s upper market clientele, threw the question wide open in a way that very few analysts and commentators find helpful. Put another way (paraphrasing the Dread Pirate Roberts), anyone who tells you they know definitively what fair use is, is probably selling something.
Not terribly surprisingly, this is not the last word from Prince. He is currently putting on a show that consists of other people’s Instagram photos, blown up to large wall size, sometimes with Prince's comments below. An example is here:
This user DoeDeere was apparently already found by reporters, and she disclaimed any interested in pursuing Prince for infringement. But what if someone else were so inclined?
At a basic level, Prince’s Second Circuit victory clears away the need to ask why he did any of this. What of the transformation itself?. It’s not clear if Prince actually logged into Instagram and made the comment post, or if the newer work is itself an alteration of the existing Instagram post. That could make a great deal of difference. If Prince took an existing image, let’s say of kittens, then added some sexualized comment, he would be certainly in the neighborhood of the Cariou decision logic, such as it is, from the standpoint of transformation (kittens are to pornography as Roy Orbison is to 2LiveCrew, or something like that). But if all he did was print out a comment thread of which he was a part (within Instagram), he would have to argue that the original online comment was the visually transformative element, or that merely making a larger printout suffices. That would effectively abolish copyright on the Internet, which seems unlikely.
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Prince will clearly continue to push the envelope, so further twists and turns are all but certain.