On April 25, 2013, the United States Court of Appeals for the Second Circuit ruled in favor of the popular appropriation artist, Richard Prince, reversing the lower court’s decision in part. As many of my fellow EASL members are aware, our Section recently hosted a CLE on this very topic several months ago, in an art gallery in Newark. During the CLE, we discussed the significance of this case and the ramifications its precedent may have on the art world.
Plaintiff Patrick Cariou’s allegations arise from Prince’s use of the photographs that Cariou originally published in his book Yes, Rasta. In 2000, Cariou published this book of classical portraits and landscape photos taken during the six years that he spent living in Jamaica with Rastafarians. Prince admittedly altered and/or incorporated these photos in the creation of various collages and paintings, which he entitled Canal Zone, exhibited in 2007 and 2008. It should be noted that the gallery that held the exhibition was also named as a defendant in this matter. Although Prince admitted that his depiction of Cariou’s photographs didn't really have a message, the Court nevertheless found that “[w]hat is critical is how the work in question appears to the reasonable observer, not simply what an artist might say about a particular piece or body of work. Prince’s work could be transformative even without commenting on Cariou’s work or on culture, and even without Prince’s stated intention to do so.” (14:4-7). In assessing fair use and the transformative nature of Prince’s work, the Court reasoned that “looking at the artworks and the photographs side-by-side, we conclude that Prince's images, except for those we discuss separately below, have a different character, give Cariou's photographs a new expression, and employ new aesthetics with creative and communicative results distinct from Cariou's.” (15:1-4).
Ultimately, the Court held that Prince’s artwork makes fair use of Cariou’s photographs, as Prince “added something new” to twenty-five of the thirty images in dispute. (15:10-11 and 23:3-4). Regarding the remaining five, the Court stated that “[a]lthough the minimal alterations that Prince made in those instances moved the work in a different direction from Cariou's classical portraiture and landscape photos, we cannot say with certainty at this point whether those artworks present a ‘new expression, meaning, or message.’” (20:16-19; citing Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579).
Read the Court’s opinion here
Read additional analysis and see images of the artwork at issue here: http://www.hollywoodreporter.com/thr-esq/appropriation-artist-richard-prince-prevails-446479