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| Yes Rasta by Patrick Cariou www.patrickcariou.com |
The world-famous self-styled “appropriation artist” Richard Prince took original photographs from a book published by French photographer Patrick Cariou, blew the photos up and put paint splashes and excerpt from soft-core pornography on them. Thirty works were at issue in the case, each with varying degrees of modification by Prince. The district court found that the works did not qualify as fair use and ordered the works impounded and destroyed. The Second Circuit rejected as error the district court’s requirement that, to qualify for a fair use defense, a secondary use must “comment on, relate to the historical context of, or critically refer back to the original work.” To qualify as a fair use, a new work must alter the original with new expression, meaning or message. “The law imposes no requirement that a work comment on the original or its author in order to be considered transformative, and a secondary work may constitute a fair use even if it serves some purpose other than those (criticism, comment, news reporting, teaching, scholarship, and research) identified in the preamble to the statute. The Second Circuit analyzed twenty-five of the works as fair use and remanded five works for the district court to consider whether the fair use defense applied. At oral argument, Cariou’s lawyer said that he did not want to destroy the artworks. The dissent criticized the majority for deciding twenty-five of the works and remanding five, the dissenting judge would have remanded all of the works for reconsideration under the clarified legal standard.
To read Judges Parker, Hall, and Wallace's decision, click here.
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Copyright law, fine art and navigating the courts. All practice, no theory.Copyright Litigation Handbook (Thomson Reuters Westlaw 2012-2013) by Raymond J. Dowd
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