Richard Prince Rastafari Art May Be Protected

     MANHATTAN (CN) – Fair use may entirely protect the art series that controversial appropriation artist Richard Prince created from photographs of Rastafari, the 2nd Circuit ruled.
     Paris-based photographer Patrick Cariou had initiated the landmark copyright case in December 2008 after he learned that the Gagosian Gallery in New York had featured a Prince series called “Canal Zone” that used dozens of photographs Cariou had taken of Rastafari.
     Cariou published the images in a 2000 book, “Yes Rasta,” which he said culminated from 10 years documenting a group of Rastafari in the secluded mountains of Jamaica.
     Prince bought four copies of the Powerhouse Books edition, which is now out of print, for his series. After scanning or printing the photos directly onto canvas, Prince made some alterations, such as enlarging or cropping them. In some cases, he added some painted-on gas masks, guitars or other features to the Rastas.
     Cariou was never credited as the photographer, and Prince in fact credited himself in the book as the copyright owner of all artworks and insert images, according to the complaint.
     The Gagosian Gallery had already sold several works from the series for about $10 million, but U.S. District Judge Deborah Batts ordered Prince in March 2011 to turn over the remaining 30 works that she found infringing. She said Cariou could then destroy, sell or otherwise dispose of the works.
     A divided three-judge panel of the 2nd Circuit reversed Thursday, finding that 25 of “Prince’s artworks do make fair use Cariou’s copyrighted photographs.”
     “With regard to the remaining five artworks, we remand to the district court, applying the proper standard, to consider in the first instance whether Prince is entitled to a fair use defense,” Judge Barrington Parker wrote for the majority.
     The ruling undermines the requirement Batts imposed for a secondary use to qualify for a fair-use defense – that it must “comment on, relate to the historical context of, or critically refer back to the original work.”
     Though this is true of “2 Live Crew’s parody of Roy Orbison’s ‘Oh, Pretty Woman,'” and “much of Andy Warhol’s work,” it is not the rule.
     “Even Cariou concedes … the district court’s legal premise was not correct,” Parker wrote. “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. Instead, as the Supreme Court as well as decisions from our court have emphasized, to qualify as a fair use, a new work generally must alter the original with ‘new expression, meaning, or message.'” (Parentheses in original.)
     The 25 Prince works that are clearly transformative in that they “manifest an entirely different aesthetic from Cariou’s photographs,” according to the ruling.
     “Where Cariou’s serene and deliberately composed portraits and landscape photographs depict the natural beauty of Rastafarians and their surrounding environs, Prince’s crude and jarring works, on the other hand, are hectic and provocative,” Parker wrote. “Cariou’s black-and-white photographs were printed in a 9 1/2″ x 12″ book. Prince has created collages on canvas that incorporate color, feature distorted human and other forms and settings, and measure between ten and nearly a hundred times the size of the photographs. Prince’s composition, presentation, scale, color palette, and media are fundamentally different and new compared to the photographs, as is the expressive nature of Prince’s work.”
     The court said Batts had given improper weight to testimony that Prince gave in deposition where he said he “do[es]n’t really have a message,” that he was not “trying to create anything with a new meaning or a new message,” and that he “do[es]n’t have any … interest in [Cariou’s] original intent.”
     Prince testified that he “[doesn’t] have any [real] interest in what [another artist’s] original intent is because … what I do is I completely try to change it into something that’s completely different. … I’m trying to make a kind of fantastic, absolutely hip, up to date, contemporary take on the music scene.”
     Though Cariou said the court could not consider how Prince’s works are perceived unless Prince said as much, the court found that “no such rule exists.”
     “What 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,” Parker wrote. “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.”
     The five works remanded to Batts for further consideration were so negligibly altered that a fair use defense may not apply.
     “Specifically, ‘Graduation,’ ‘Meditation,’ ‘Canal Zone (2008),’ ‘Canal Zone (2007),’ and ‘Charlie Company’ do not sufficiently differ from the photographs of Cariou’s that they incorporate for us confidently to make a determination about their transformative nature as a matter of law,” Parker wrote. “Although 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 can not say with certainty at this point whether those artworks present a “new expression, meaning, or message.”
     The Gagosian Gallery and its owner, Lawrence Gagosian, must wait on this finding, as well.
     “If the district court concludes on remand that Prince is liable as a direct infringer with regard to any of the remaining five works, the district court should determine whether the Gagosian defendants should be held liable, directly or secondarily, as a consequence of their actions with regard to those works,” Parker wrote.
     The court sidelined Cariou’s claims that he suffered damages from Prince’s use of his work.
     Though Cariou noted that it caused him to lose out on a potential exhibit with gallery owner Cristiane Celle, the appellate majority found another reason to blame.
     “Celle did not decide against putting on a Yes Rasta show because it had already been done at Gagosian, but rather because she mistakenly believed that Cariou had collaborated with Prince on the Gagosian show,” Parker wrote.
     The court also decided that “neither Prince nor the Canal Zone show usurped the market for those photographs. Prince’s audience is very different from Cariou’s, and there is no evidence that Prince’s work ever touched – much less usurped – either the primary or derivative market for Cariou’s work.”
     Writing in dissent, Judge John Clifford Wallace said the majority improperly discounted Prince’s statements in reviewing fair use.
     “While it may seem intuitive to assume that a defendant claiming fair use would typically give self-serving ex post facto testimony to support a defense, this court has nevertheless relied on such statements when making this inquiry – even if just to confirm its own analysis,” Wallace wrote.
     Noting that he is “not an art critic or expert,” Wallace also expressed reservations about the court’s decision to exercise artistic judgment on Prince’s work.
     “If the district court is in the best position to determine fair use as to some paintings, why is the same not true as to all paintings?” he asked. “Certainly we are not merely to use our personal art views to make the new legal application to the facts of this case. It would be extremely uncomfortable for me to do so in my appellate capacity, let alone my limited art experience.”

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