One of the most significant art copyright cases of recent decades has been settled.
Court documents filed today in the U.S. Southern District Court of New York state that Richard Prince and his gallery, Gagosian, are free of any claim of copyright infringement from French photographer Patrick Cariou.
“Richard is pleased to have settled the case,” Prince’s counsel, Joshua Schiller, of New York firm Boies Schiller Flexner, told A.i.A. by phone today. “We think that the Second Circuit decision is important, and it will protect artists, who can use as raw ingredients other works of art in creating new expression.”
The case concerns Prince’s “Canal Zone” series of paintings (2008), which incorporated photographs by Cariou from his 2000 book Yes, Rasta (Powerhouse) for a show at Gagosian Gallery. In 2009 Cariou brought a copyright infringement suit against Prince, Gagosian Gallery, Lawrence Gagosian and catalogue publisher Rizzoli. In March 2011, U.S. District judge Deborah Batts ruled against Prince and ordered the defendants to destroy remaining copies of the catalogue and unsold paintings that make use of Cariou’s photographs.
That decision was largely overturned on appeal in April 2013, with the exception of five paintings that, the court concluded, must be reevaluated for claims of fair use.
Some viewed the terms of the settlement as a vindication for Prince and other artists who borrow imagery.
“The plain language of the stipulation seems to indicate that the fair use principles that we believe are important to artists engaged in the transformative use of existing images were upheld even in the context of a settlement,” Michael Straus, chairman of the board of the Andy Warhol Foundation for the Visual Arts, told A.i.A. by phone today.
He added, “The bottom line is that there are not and cannot be any claims of copyright infringement against Mr. Prince based on his use of Mr. Cariou’s imagery.”
The Warhol Foundation, along with the Robert Rauschenberg Foundation, filed a brief in the case in October 2013, siding with Prince. Their argument: the intellectual content and aesthetic meaning of works of art are not always visible to the naked eye without art-historical context. Their brief suggested that art historians, curators and other experts should have a say in the case.
The settlement of the case leaves those in the copyright law field without precedents that might have been set had the case continued.
“Out of the 30 works, 25 were found to be fair use and five were sent back to the lower court for re-arguing,” New York attorney Sergio Muñoz Sarmiento told A.i.A. by phone. “The judges at the Second Circuit court decided that the case would hinge on whether a reasonable observer would find Prince’s works to have been transformative, and thus protected under fair use law. The question remains, who is a ‘reasonable observer?'”
“It’s unfortunate that we’ll never know how the case would have been fully resolved,” Amy Goldrich, of New York’s Cahill Partners, told A.i.A. in an e-mail, “and I can see how those whose work may be sources for appropriation will likely be disappointed by this outcome, but there’s a lot more clarity now on how fair use applies. That additional clarity for artists is a good thing.”