Cariou v. Prince: the damage to plaintiff is far more important than Richard Prince’s inability to articulate an artistic intent.

I discussed here nearly 2 years ago the lawsuit by photographer Patrick Cariou against Richard Prince alleging that the collages Prince had exhibited at the Gagosian Gallery in 2008 because they had appropriated photographs of Rastafarians Cariou had taken and published in his book Yes Rasta in 2001. I wrote then that the lawsuit “could have a profound impact on the art world, either clarifying that the widespread acceptance in the art world of appropriation art is legally legitimate or opening the door to an increased number of lawsuits by copyright holders against artists engaged in collage, sampling, satire, and any  number of other genres that have become increasingly easy to engage in with the digitalization of media and the rise of the internet.”

The verdict is in: the court ruled in favor of Cariou and against Prince. The decision is embedded below.

On the one hand, the decision is not as far reaching as it might have been. The court emphasized that it was declining to accept Prince’s argument that “appropriation art is per se fair use, regardless of whether or not the new artwork comments on the original works appropriated.” Slip Op. at 17-18. On the other, the court limited the scope of fair use in appropriation art to work that comments on the original works, insisting that, “to the extent that [Prince’s works] merely recast, transform, or adapt the photos, [they] are . . . infringing derivative works.” Id. at 18.

There are a several interesting aspects of the case. First, the court emphasized that Prince “testified that he has doesn’t “really have a message” he attempts to communicate when he making art,” and that “[i]n creating [his] Paintings Prince did not intend to comment on any aspects of the original works or the broader [Rastafarian] culture.”

It may be a dangerous thing to depend on the artist’s intent in judging the transformative nature of his art. As Sister Wendy Beckett explains in the Encyclopedia Britannica Online, in words that are so well accepted they are almost trite,

The passageway provided by art is very wide. No single interpretation of art is ever “right,” not even the artist’s own. He or she can tell us the intent of the work, but the actual meaning and significance of the art, what the artist achieved, is a very different matter. (It is pitiable to hear the grandiose discussions of artists’ work by the least talented of our contemporaries.) We should listen to the appreciations of others, but then we should put them aside and advance toward a work of art in the loneliness of our own truth. Each of us encounters the work alone, and how much we receive from it is wholly the effect of our will to accept this responsibility.

What was Jackson Pollock’s purpose in painting Lavender Mist? Van Gogh’s in painting The Irises? Haven’t we accepted by now the limitations focus on artistic intention would impose on our appreciation of art? Yet, in Blanch v. Koons, 467 F.3d 244, 252-53 (2d Cir. 2007) (emphasis added), the Second Circuit, in holding that Jeff Koons’ appropriation of a copyrighted photograph constituted fair use, based its conclusion that Koons’ use of the photograph was “transformative” precisely on Koons’ statements regarding what he intended:

Koons asserts — and Blanch does not deny — that his purposes in using Blanch’s image are sharply different from Blanch’s goals in creating it. Compare Koons Aff. at P4 (“I want the viewer to think about his/her personal experience with these objects, products, and images and at the same time gain new insight into how these affect our lives.”) with Blanch Dep. at 112-113 (“I wanted to show some sort of erotic sense[;] . . . to get . . . more of a sexuality to the photographs.”). The sharply different objectives that Koons had in using, and Blanch had in creating, “Silk Sandals” confirms the transformative nature of the use. See Bill Graham Archives, 448 F.3d at 609 (finding transformative use when defendant’s purpose in using copyrighted concert poster was “plainly different from the [*253] original purpose for which they were created”); see also 17 U.S.C. § 107(1) (first fair-use factor is the “purpose and character of the use” (emphasis added)).

Koons is, by his own undisputed description, using Blanch’s image as fodder for his commentary on the social and aesthetic consequences of mass media. Castle Rock Entm’t, 150 F.3d at 142 (quoting Leval, supra, 103 Harv. L. Rev, at 1111). When, as here, the copyrighted work is used as “raw material,”Castle Rock Entm’t, 150 F.3d at 142 (internal quotation marks and citation omitted), in the furtherance of distinct creative or communicative objectives, the use is transformative. Id.; see alsoBill Graham Archives, 448 F.3d at 609 (use of concert posters “as historical artifacts” in a biography was transformative); Leibovitz v. Paramount Pictures Corp., 137 F.3d 109, 113 (2d Cir. 1998) (parody of a photograph in a movie poster was transformative when “the ad [was] not merely different; it differ[ed] in a way that may reasonably be perceived as commenting” on the original). His stated objective is thus not to repackage Blanch’s “Silk Sandals,” but to employ it “‘in the creation of new information, new aesthetics, new insights and understandings.’”

The test for whether “Niagara’s” use of “Silk Sandals” is “transformative,” then, is whether it “merely supersedes the objects of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message.”Campbell, 510 U.S. at 579 (internal quotation marks and citation omitted, alteration incorporated);Davis, 246 F.3d at 174 (same). The test almost perfectly describes Koons’s adaptation of “Silk Sandals”: the use of a fashion photograph created for publication in a glossy American “lifestyles” magazine — with changes of its colors, the background against which it is portrayed, the medium, the size of the objects pictured, the objects’ details and, crucially, their entirely different purpose and meaning — as part of a massive painting commissioned for exhibition in a German art-gallery space. We therefore conclude that the use in question was transformative.

In short, courts seem to be basing the transformative nature of alleged infringements on the avowed intentions of the artists themselves. Thus, in the decision enjoining the publication of a “sequel” to The Catcher in the Rye, the judge was significantly influenced by the fact the author and his representatives had described the work in words that didn’t fit the legal standard they wanted to meet:

Until the present lawsuit was filed, Defendants made no indication that 60 Years [the new work] was in any way a parody or critique of Catcher [in the Rye]. Quite to the contrary, the original jacket of 60 Years states that it is “. . . a marvelous sequel t one of our most beloved classics.” . . . Additionally, when initially confronted with the similarities between the two works, rather than explaining that60 Years was a parody or critique of Catcher, Colting’s [the new work’s author] literary agent, Mr. Sane, contended that 60 Years “is a completely freestanding novel that has nothing to do with the original Catcher in the Rye.” Opinion and Order at 16, n. 3.

Colting, obviously, should have called his work a parody and critique, not a sequel or a “freestanding novel.” It’s odd to think that makes a difference, though. No matter what he said, his work would be the same.

In the same way, it seems odd that Prince’s refusal to articulate an artistic intent and Koons elaborate description of his own intent are the most significant determinants of the legitimacy of their respective artworks.

Of course, there are more obvious was to distinguish Prince’s case from Koons’. Koons’ use of a fashion photograph in his collage quite plainly had no impact on any reasonably foreseeable markets for that fashion photograph. In contrast, Prince’s work quite obviously did have an impact on the commercial value of Cariou’s work. Cariou had been negotiating with a Manhattan gallery owner for a show of his Yes Rasta photographs when the Gagosian Gallery began showing Prince’s works that appropriated Cariou’s photographs. As a result, the gallery owner considering a show for Cariou’s works backed off, because “she did not want to exhibit work which had been “done already” at another gallery. Slip op. at 6-7.

So we need not go so far as to conclude that Cariou’s lawsuit signals the death of appropriation art in all its various guises. Blanch v. Koons alone is proof that is not the case. But if we realize how plainly and directly Prince’s appropriations damaged Cariou’s opportunities to economically benefit from his own work, the outcome (if not all of the reasoning) of this new case is obviously correct.

Cariou v Richard Prince