Should Appropriation Artists Be Protected By Fair Use?

Appropriation art, which involves an artist purposefully copying the work of another, has become a popular art form. But is it legal? The United States District Court for the Southern District of New York recently faced that question and determined whether appropriators are entitled to use the defense of fair use against a claim of copyright infringement. Cariou v. Prince, 784 F.Supp. 2d 337 (S.D.N.Y. 2011).

The plaintiff in that case, professional photographer Patrick Cariou (“Cariou”), had spent time in Jamaica over the course of six years. After gaining the trust of the Rastafarians, he had been permitted to take their portraits. In 2000, Cariou published a book of his photographs. The book contained those portraits as well as landscape photos he had taken around Jamaica. He testified that he was the sole copyright holder of the images that appeared in his book.

The defendant, Richard Prince (“Prince”), was a well-known “appropriation artist” who had shown his work at several museums. Appropriation art deliberately copies images and presents them in a new version or context. During an exhibit at a hotel in St. Barts between December 2007 and February 2008, Prince showed a collage entitled “Canal Zone (2007)” which included 35 photographs that had been taken from Cariou’s book. Prince painted over some portions of the photos. Some were used in their entirety, while others were only partially used. Prince intended to use “Canal Zone (2007)” as a means of introducing characters he intended to use in a planned series of artworks. Cariou eventually claimed that Prince had infringed on his copyright, but Prince asserted that his works were protected by the defense of fair use.

Cariou possessed undisputed ownership of valid copyright in the photos, which courts have held to be a copyrightable subject matter for more than 100 years. Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1884). The Court then considered whether Prince’s use of Cariou’s copyrighted work should be protected as a type of fair use. When determining whether a particular use of a copyrighted work qualifies as fair use, courts will consider four factors:

1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

2) the nature of the copyrighted work; 

3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and 

4) the effect of the use upon the potential market for or value of the copyrighted work.

17 U.S.C. §107.

First, the Court considered the purpose and character of Prince’s use of the photos. It found its transformative content to be “minimal at best,” its purpose to be “substantially commercial, and interpreted Prince’s failure to obtain permission (and the co-defendant Gagosian Gallery’s failure to inquire as to whether Prince had obtained permission) to constitute bad faith. Cariou at 350-1. Thus, it determined that the first prong weighed heavily against a finding of fair use. Second, the Court found that Cariou’s photos were highly original and creative (as opposed to factual or informational). Thus, the Court held that the use of such works without permission also weighs against fair use. Id. at 352.

Third, the Court considered the amount and substantiality of the portion of Cariou’s photos used in Prince’s works. It found that, in the majority of his works, Prince appropriated central figures that went to the very heart of Cariou’s works, and that this factor also weighed heavily against a finding of fair use. Id. Finally, the Court found the fourth factor to also weigh against fair use because Prince’s secondary use “unfairly damaged the original market for [Cariou’s] [p]hotos and, if widespread, would likely destroy any identifiable derivative market for [them].” Id. at 353. Because none of the four factors considered supported fair use, the Court found that the defendants were not entitled to fair use as a defense. Id.

Prince is appealing the Court’s decision. This case may have a significant impact in both the art and intellectual property industries.

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© 2012 Nissenbaum Law Group, LLC