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.
