NEW YORK—The U.S. Court of Appeals will consider an appeal filed by appropriation artist Richard Prince over a decision that found he had violated the copyright of French photographer Patrick Cariou (ANL, 4/5/11).
On Sept. 14, a judge denied Cariou’s motion to dismiss the appeal. No date has been set for a hearing, although Prince’s lawyer, Josh Schiller, of Boies, Schiller & Flexner, expects that it will not take place until January or February of next year.
On March 18, both Prince and the Gagosian Gallery in Manhattan, which has represented the artist since 2003, were found liable of copyright violation by U.S. District Court Judge Deborah A. Batts. The gallery was found liable for having exhibited and published the material in a catalogue to accompany the 2008 exhibit. The Gagosian gallery, Batts wrote in her decision, “had the right and ability to supervise Prince’s work, or at the very least the right and ability (and perhaps even responsibility) to ensure that Prince obtained licenses to use the Photos because they made Prince’s Paintings available for sale.”
Prince never denied that he made use of photographic images he found in a 2000 book by Cariou called Yes Rasta, documenting the community of Rastafarians the French photographer encountered in the mountains of Jamaica, for collage painting. He claimed that his use of Cariou’s images was “transformative”—borrowing in the process of creating something that is entirely new. In his artwork, Prince scanned several of Cariou’s images of people and landscapes and printed them directly onto his canvases, defacing them in limited ways (placing an electric guitar in one Rastafarian’s hands and putting paint on another’s face, for instance) as well as adding other elements to the paintings. A transformative use of an existing image, such as for the purpose of commenting on or parodying it, is an accepted exception to the federal copyright law known as “fair use.”
In the March 18 ruling, however, Judge Batts found that the artist had violated Cariou’s copyright, writing in her opinion: “If an infringement of copyrightable expression could be justified as fair use solely on the basis of the infringer’s claim to a higher or different artistic use . . . there would be no practicable boundary to the fair use defense.” Cariou’s lawyer Daniel Brooks, told ARTnewsletter that Prince “didn’t transform these photographs, he just used them.”
Judge Batts’s proposed remedy was to impound all of Prince’s unsold paintings that made use of Cariou’s images and destroy them. Twenty-one unsold works from that “Canal Zone” series of paintings, as well as a number of catalogues and invitations to the gallery exhibition are currently stored in a warehouse in Long Island, awaiting a final ruling on the appeal. Schiller said 13 paintings were sold from the Gagosian exhibition and are in the possession of the buyers, who are not part of the lawsuit.
Prince’s appeal asks the court to reconsider several aspects of the district court’s ruling, Schiller said. The first is whether or not the artist’s use of the images in an out-of-print book could be considered “fair use” (borrowing in the process of creating something that is entirely new and “transformative”). The second is the fairness of requiring all of the unsold paintings and catalogues to be destroyed or turned over to Cariou. The third is Judge Batts’s decision to lump all of the paintings together as violating Cariou’s copyright, rather than to identify individual works.
“In effect, the judge ruled that anything Richard did could be considered copyright violation and not fair use,” said Schiller. “You look at some of Richard’s paintings and you can clearly see that he did not use much of Cariou’s work in them, and in some of the paintings Cariou’s work is almost completely masked. What Judge Batts did was make a per se ruling against appropriation art.”
If Judge Batts’s decision on the disposition of Prince’s artwork is affirmed by the appeals court, Schiller noted, these buyers might have a difficult time selling them, “and they might have to go to court to determine the legal status of the works they bought.”
Schiller noted that he represents Richard Prince but, since both the artist and the gallery are appealing the lower court ruling, he will also argue that Judge Batts’s finding that the Gagosian Gallery was a “vicarious and contributory” party to the copyright infringement also should be overturned.