Three judges heard oral arguments in the appeal regarding the significant copyright case Prince v. Cariou this morning. The lawyers for Prince seemed to have the judges’ collective ear, which could bode well for the appropriation artist.
The case concerns the “Canal Zone” series of paintings by artist Richard Prince (2008), which incorporated photographs by Patrick 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. The case has given rise to extensive debate in the art world over copyright law and provisions for “fair use” of appropriated original material.
Prince’s lawyers argued this morning that Batts’s decision was based on a fundamental error in finding that an artist cannot make a transformative work using appropriated materials without “commenting” on the original. The works’ value and originality, they posited, was proved by the sky-high market for the works.
Counsel for Cariou argued that there was no reason Cariou’s work in particular had to be taken without permission when other, similar images existed.
The liveliest moment in this morning’s proceedings came when the panel asked Daniel J. Brooks, counsel for Cariou, whether the injunction to destroy the works was in the public interest.
Brooks pointed out that his client’s father was in the French Resistance and that he does not support destruction of any artwork, which is for him redolent of Nazi bookburning.
“The court,” Josh Schiller of Boies, Schiller & Flexner, Prince’s counsel, later observed, “did not invent the injunction.”
The case also deals with whether Cariou’s market was harmed by Prince’s paintings. The judges seemed unsympathetic to Brooks’s claims of a damaged market.
“Bringing up the market is a clear loser for you,” Judge Parker said to Brooks, who confirmed that Cariou’s prints sold for a few thousand Euro, while Prince’s paintings sold for millions. “You sold to a totally different audience, you’ve admitted that not many of the books were sold, you sold them out of a warehouse in Dumbo, and that the book was out of print. Prince was selling to a wealthier crowd, and on this side of the river.” The allusion to a more elevated marketplace in Manhattan brought laughs from the courtroom.
Another key element was testimony that art dealer Christiane Celle had balked at a previously discussed gallery exhibition of Cariou’s work because of Prince’s “Canal Zone” show. Schiller argued that the testimony of one dealer about a single show does not prove the foreclosure of a market, further pointing out that Cariou is still not listed as an artist on Celle’s website.
“I think the key moment today was when Judge Parker said that the injunction to destroy the works was something akin to a decision by the Huns or the Taliban,” Amy Adler, a professor of art law at NYU, told A.i.A. (Adler has consulted with Boies, Schiller & Flexner but was speaking on her own behalf.) “The judges could see that the injunction is draconian. And they plainly understood the importance and the artistic significance of this case.”
Donn Zaretsky of the Art Law Blog pointed out the high level of interest on the part of the judges. “In the previous cases this morning, it was very businesslike, they kept everyone to their time limits. Here you could see the judges were really interested. They let everyone go over time.”
Virginia Rutledge, counsel for The Andy Warhol Foundation for the Visual Arts (which filed a friend of the court brief in the case), told A.i.A., “The outcome can’t be predicted based on questions raised during oral argument, but the Court has before it very compelling arguments for Prince’s transformative use of Cariou’s imagery and the significance of the First Amendment speech interests at stake, and was openly dismissive of allegations of market harm.”
The court now deliberates and decides the case at its own schedule. Observers of the court tell A.i.A. that could take as much as six months to a year.