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Media Alerts - Patrick Cariou v. Richard Prince, et al. - Second Circuit
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April 25, 2013
  Patrick Cariou v. Richard Prince, et al. - Second Circuit
Headline: Second Circuit Reverses Copyright Victory for Photographer Patrick Cariou, Holding That Most of Richard Prince's Works Made "Fair Use" of Cariou's Photographs

Area of Law: Copyright

Issue(s) Presented: Whether artwork that incorporated copyrighted photographs qualified as transformative, and thus met the "fair use" standard, even though the works did not comment on the original photographs.

Brief Summary: Plaintiff Patrick Cariou ("Plaintiff") is an artist of classical portraits and landscape photographs who brought a copyright infringement suit against Richard Prince, Gagosian Gallery Inc., and Lawrence Gagosian ("Defendants"), alleging that Prince's works - published and sold by Gagosian - had impermissibly altered, published, and sold Cariou's photographs without his permission. The Defendants raised a fair use defense. The United States District Court for the Southern District of New York found that Defendants had violated Plaintiff's copyrights, reasoning that to qualify as "fair use," Prince's works would have needed to comment on Cariou or his photos. The Second Circuit reversed, holding that the fair use defense does not require the alleged infringer's works to have commented on the original works; rather, the fair use defense can be satisfied as long as the new work is transformative - i.e., as long as it alters the original work with new expression, meaning, or message. Here, the court held that 25 of the 30 challenged works qualified as transformative. The remaining five works presented "closer questions," and the Second Circuit remanded the case to the district court for further consideration of those five works.

To read the full opinion, please go to:

Extended Summary: Plaintiff Patrick Cariou is a professional photographer who, over the course of six years, worked with Rastafarians in Jamaica. He created a book of portrait and landscape photographs from his experiences with the Rastafarian community, which was published in 2000. The publication is currently out of print but sold approximately 5,791 copies. Defendant Richard Prince ("Prince") is a well-known appropriation artist, and his work - including taking photographs that others have produced and incorporating them into his own collages and paintings - has been displayed in many prominent art museums globally. Prince saw Cariou's book in 2005 and incorporated photographs from the book to create artwork. Prince's artwork was subsequently featured in Defendant Gagosian's ("Gagosian") art gallery. Cariou learned of Prince's exhibit from an art gallery owner in December 2008 and brought claims of copyright infringement against Defendants in the same month in the United States District Court for the Southern District of New York. The defendants raised a fair use defense, and both sides cross-moved for summary judgment.

Under the Copyright Act of 1976, the "fair use of a copyrighted work" is not considered copyright infringement. To determine whether a secondary use qualifies as "fair use," a key factor is "the purpose and character of the use." The district court interpreted this to mean that to qualify for a fair use defense, the secondary use must "comment on, relate to the historical context of, or critically refer back to the original works." On this basis, the district court ruled against the Defendants, holding that Prince's work failed to comment on Cariou's photographs. The Defendants appealed, arguing that the court had misapplied the fair use standard.

The Second Circuit agreed with the Defendants, holding that that the district court had interpreted "fair use" too narrowly. The court explained, citing Supreme Court precedent, that copyright is not an absolute protective shield for authors but rather is designed to stimulate the public's intellectual enrichment, and that the fair use defense is necessary to meet that goal. Explaining that the most important factor in a fair use analysis is "the purpose and character of the [secondary] use," the Second Circuit rejected the district court's view that this factor means that the secondary use must comment on the original work. "The law imposes no requirement that a work comment on the original or its author in order to be considered transformative," the court wrote. "Instead, qualify as fair use, a new work must generally alter the original with 'new expression, meaning, or message.'" The court studied Prince's works and concluded that 25 of the 30 challenged works were transformative, noting that they "manifest an entirely different aesthetic from Cariou's photographs."

The Second Circuit also considered the remaining factors for assessing fair use - namely, the effect of the secondary use on the potential market for the value of the copyrighted work; the nature of the copyrighted work itself; and the "amount and substantiality of the portion used in relation to the copyrighted work as a whole." It found that the audiences varied significantly from Cariou to Defendants, and that Defendants' actions did not usurp Cariou's market for selling his photographs. It also acknowledged that Cariou's original work had been both creative and published - placing it near the core of intended copyright protection - but concluded that because it was being used for a transformative purpose here, this factor's utility was limited. Finally, the Second Circuit considered the proportion of Cariou's work used by Prince. Here, it acknowledged that "Prince used key portions of Cariou's photographs," but again concluded that Prince did so in a transformative manner for 25 of the 30 works.

The Second Circuit concluded that the five remaining works presented closer questions, noting that they involved alterations to Cariou's work that were "relatively minimal." It thus remanded that portion of the case to the district court for further analysis, expressing no view as to how it should come out. Judge Wallace concurred in part and dissented in part, arguing that the entire case should have been remanded to the district court for reconsideration under the the Second Circuit's articulation of the fair use standard.

To read the full opinion, please go to:

Panel: Second Circuit Judges B.D. Parker and Hall; Ninth Circuit Judge Wallace (sitting by designation)

Argument (if known): 05/21/2012

Date of Issued Opinion: 04/25/2013
Docket Number: 11-1197-cv

Decided: Reversed in part, vacated in part, and remanded

Case Alert Author:
Sarah Wegmueller

Counsel : JOSHUA I. SCHILLER (Jonathan D. Schiller, George F. Carpinello, on the brief), Boies, Schiller & Flexner LLP, New York, NY, for Defendant-Appellant Richard Prince; HOLLIS ANNE GONERKA BART, CHAYA WEINBERG- BRODT, DARA G. HAMMERMAN, AZMINA N. JASANI, Withers Bergman LLP, New York, NY, for Defendants-Appellants Gagosian Gallery, Inc. and Lawrence Gagosian; DANIEL J. BROOKS (Seth E. Spitzer, Eric A. Boden, on the brief), Schnader Harrison Segal & Lewis LLP, New York, NY, for Plaintiff-Appellee Patrick Cariou. ANTHONY T. FALZONE, JULIE A. AHRENS, DANIEL K. NAZER, Stanford Law School Center for Internet and Society, Stanford, CA; VIRGINIA RUTLEDGE, New York, NY; ZACHARY J. ALINDER, JOHN A. POLITO, Bingham McCutchen LLP, San Francisco, CA, for Amicus The Andy Warhol Foundation for the Visual Arts; JOSEPH C. GRATZ, Durie Tangri, LLP, San Francisco, CA; OLIVER METZGER, Google Inc., Mountain View, CA, for Amicus Google Inc. CLIFFORD M. SLOAN, BRADLEY A. KLEIN, Skadden, Arps, Slate, Meagher & Flom LLP, Washington, DC, for Amici The Association of Art Museum Directors, The Art Institute of Chicago, The Indianapolis Museum of Art, The Metropolitan Museum of Art, The Museum of Modern Art, Museum Associates d.b.a. Los Angeles County Museum of Art, The New Museum, The Solomon R. Guggenheim Foundation, The Walker Art Center, and The Whitney Museum of American Art. MICHAEL WILLIAMS, DALE M. CENDALI, CLAUDIA RAY, Kirkland & Ellis LLP, Washington, DC, for Amici American Society of Media Photographers, Inc., and Picture Archive Council of America.

Author of Opinion: Judge B.D. Parker

Emily Gold Waldman

    Posted By: Emily Waldman @ 04/25/2013 06:45 PM     2nd Circuit  

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