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Patrick Cariou wins copyright case against Richard Prince and Gagosian
Judge orders that all infringing copies of Cariou’s Rastafarian photos be impounded and destroyed

from The Art Newspaper:

By Charlotte Burns | Web only
Published online 21 Mar 2011.

New York. A US District judge has ruled in favor of photographer Patrick Cariou in his copyright lawsuit against artist Richard Prince.

Cariou originally filed suit for copyright infringement against Prince, Larry Gagosian, Gagosian Gallery, and Rizzoli books in December 2008 after a number of his photographs were re-appropriated without consent in Prince’s Canal Zone series. The photographs first appeared in Cariou’s 2000 publication, Yes, Rasta, a photographic book produced after spending six years documenting Jamaican Rastafarians.

Prince “admits to using at least 41 photos from Yes, Rasta“, according to the judge’s decision, but had claimed “fair-use” for transforming the original works, as opposed to creating derivative images.

US District Judge Deborah Batts has granted Cariou’s motion for summary judgment on the issue of copyright infringement and ordered the defendants to “deliver up for impounding, destruction, or other disposition, as Plaintiff determines, all infringing copies of the photographs, including the paintings and unsold copies of the Canal Zone exhibition book, in their possession, custody, or control and all transparencies, plates, masters, tapes, films, negatives, discs and other articles for making infringing copies.”

The defendants must also notify in writing any current or future owners of the paintings to inform them that the works infringe Cariou’s copyright, and “were not lawfully made under the Copyright Act of 1976, and that the paintings cannot be lawfully displayed”.

At its heart, the case focuses on Prince and Gagosian’s “fair use” defense. This legal doctrine is intended to mediate between the First Amendment and the Copyright Clause, which are “intuitively in conflict”, according to the judge’s decision. Four factors determine fair use.

Firstly, “the purpose and character of the use,” i.e. the extent to which the new work is transformative. However, rather than adding value solely through transforming elements of the original, the new work must comment on the original in some way, and create something “plainly different from the original purposes for which it was created”, according to the judge’s decision, which refers to the landmark copyright case of Rogers versus Koons: “If the infringement of copyrightable expression could be justified as fair use solely on the basis of the infringer’s claim to a higher or different artistic use…there would be no practicable boundary to the fair use defense.” In the earlier case, Koons failed to prove that his “parody” of an image of a couple surrounded by puppies, by commercial photographer Art Rogers, constituted fair use.

After noting Prince’s testimony that “he didn’t really have a message” and did not attempt to comment on any aspects of the original, the judge ruled that “there is vanishingly little, if any, transformative element.”

The less transformative a work, the more important its commerciality becomes. The papers quote Gagosian’s sales figures to determine that the “defendants use and exploitation of the photos…was substantially commercial…[which] weighs against fair use”. Gagosian had sold eight of the Canal Zone paintings for a total $10.48m, 60% of which went to Prince, with the remainder to the gallery. Seven other paintings were exchanged for art “with an estimated value between $6m and $8m,” according to court papers. Gagosian gallery also sold $6,784 worth of exhibition catalogues.

“Bad faith” is also taken into consideration. Despite instructing an assistant to contact Cariou’s publisher to buy extra copies of Yes, Rasta, Prince never asked “about licensing or otherwise sought permission to use” the images. “Prince’s bad faith is evident,” ruled Judge Deborah Batts.

The second element is the “nature of the copyrighted work”. The defendants had questioned Cariou’s copyright of the images, asserting that his “photos are mere compilations of facts…arranged with minimum creativity.” The judge ruled against this: “Unfortunately for defendants, it has been a matter of settled law for well over 100 years that creative photographs are worthy of copyright protection,” found the judge.

The third issue taken into consideration in the fair use defense is the “amount and substantiality of the portion of the copyrighted work used”. The judge found that, by appropriating the central figures in Cariou’s publication, Prince had gone “to the very heart of his work. Accordingly, the amount of Prince’s taking was substantially greater than necessary, given the slight transformative value of his secondary use…[which] weighs heavily against…fair use.”

The final deciding factor is the extent to which Cariou’s real and potential markets had been harmed by Prince’s appropriation. The defendants’ claims that “Cariou has not marketed his photos more aggressively (or, indeed, as aggressively as Prince has marketed his paintings) are unavailing,” found Judge Batts, who said that Cariou’s potential market had been “usurped”. Cariou’s real market was also effected after Manhattan gallerist Christiane Celle cancelled a scheduled exhibition of prints from Yes, Rasta because she did “not want to be seen to be capitalizing on Prince’s success and notoriety…and did not want to exhibit works which had been ‘done already’ at another gallery”, according to the papers.

The “Gagosian defendants” were also found “directly liable for copyright infringement” by distributing images of and selling paintings from Canal Zone. In addition, all Gagosian defendants were found as “vicarious and contributory infringers” after the judge ruled the they had “at the very least the right and ability (and perhaps even responsibility) to ensure Prince obtained licenses”. She added: “The financial benefit of the infringing use to the Gagosian defendants is self-evident.”

Cariou had also claimed for conspiracy under the Copyright Act, which was dismissed.

In an emailed statement, a Gagosian spokeswoman said: “Gagosian Gallery declines to comment on the Court’s decision at this juncture. Gagosian remains committed to the promotion of the arts through its continued support of artistic freedom in the studio for appropriation artists, such as Richard Prince, the creator of the Canal Zone series.” It is not known whether the gallery or Prince will appeal the decision.

All parties are due to appear in court on 6 May for a status conference to settle damages and fees.

Cariou’s original photo vs. Prince’s collaged and painted appropriation

Full text of the decision: http://www.aphotoeditor.com/wp-content/uploads/2011/03/cariou-prince.pdf

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Charlie Finch comments on Artnet:

…anyone who knows Prince’s work knows that minimal yet overall appropriation in the service of bad faith is what his work and career are all about, yet the judge rejected this meta kind of appropriation, ruling that it did not fall within the definition of fair use. Indeed, Judge Batts implied a kind of slippery slope by observing that Prince had not cut up or sectioned Cariou’s pictures sufficiently…

…having a judge as an interpreter of the meaning of art remains Kafkaesque: we can trot out the entire oeuvre of Andy Warhol, Robert Rauschenberg and a thousand other artists as violators of Judge Batts’ standard. But what of photographer Cariou? Is he not an artist, as well? There is undeniable schadenfreude in seeing Prince suffer, notably when his “Canal Zone” show was one of his laziest (but wasn’t that the point?) and a best seller at high retail price points. Indeed, Judge Batts decreed that, absent a stay for an appeal from the defendants, Prince’s work from the series and the tools used to make it should be obliterated in some way in the next 10 days, with those paintings already sold forbidden from being (literally) hung on the walls. Presumably, Cariou will have to go after their owners specifically…

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My short postscript:

Judge Deborah A. Batts attended Radcliffe College and Harvard Law School, and was on the law faculty of Fordham University before her appointment to the U.S. District Court for the Southern District of New York in 1994. She is the only openly gay member of the federal judiciary, and is no stranger to bold, sweeping or controversial decisions that tend to favor the underdog. In 2006 she ruled against former Environmental Protection Agency administrator Christine Todd Whitman, alleging that Whitman misled people near the World Trade Center site regarding the risks of toxic air pollution after the September 11, 2001 attacks. And in 2009 she ordered an injunction to stop an unauthorized “sequel” to Catcher in the Rye from going to press.

Here is the judge attending a dedication of her portrait at Harvard Law School – a portrait that Richard Prince, presumably, will never attempt to appropriate.

Steven Kaplan’s blog

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