Patrick Cariou v. Richard Prince
714 F.3d 694 (2013)
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Rule of Law:
A secondary work can be a transformative fair use under copyright law if it alters the original with new expression, meaning, or message, even if it does not comment on the original work, its author, or the culture from which it derives.
Facts:
- Patrick Cariou, a professional photographer, spent six years living with and photographing Rastafarians in Jamaica.
- In 2000, Cariou published these works in a book of classical portraits and landscape photographs titled 'Yes Rasta'.
- Richard Prince, a well-known appropriation artist, discovered Cariou's book and acquired several copies.
- Prince tore out at least 35 photographs from 'Yes Rasta' and incorporated them into a series of paintings and collages called 'Canal Zone'.
- Prince significantly altered the photographs by painting over subjects, enlarging images, combining them with other appropriated pictures, and mounting them on large canvases.
- The 'Canal Zone' series was exhibited and sold through the Gagosian Gallery.
- Prince did not seek or obtain permission from Cariou to use the photographs.
Procedural Posture:
- Patrick Cariou filed a copyright infringement suit against Richard Prince and Gagosian Gallery in the U.S. District Court for the Southern District of New York.
- The parties filed cross-motions for summary judgment.
- The district court granted summary judgment in favor of Cariou, finding Prince's use was not fair use because it did not comment on Cariou's work.
- The district court issued a permanent injunction ordering the defendants to deliver up all infringing works for destruction or other disposition.
- Prince and Gagosian, as appellants, appealed the district court's judgment to the U.S. Court of Appeals for the Second Circuit.
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Issue:
Does an artist's appropriation of copyrighted photographs constitute fair use under 17 U.S.C. § 107 when the new work alters the original photographs with a new aesthetic, expression, and meaning, but does not comment on the original work or its author?
Opinions:
Majority - Judge Parker
Yes, for twenty-five of the thirty artworks, the appropriation constitutes fair use. A secondary work is transformative if it alters the original with a new expression, meaning, or message, and it is not required to comment on the original work. The district court applied an incorrect legal standard by requiring such commentary. Looking at the works side-by-side, Prince’s artworks manifest a fundamentally different aesthetic from Cariou’s serene photographs; they are crude, jarring, large-scale, and provocative. The critical question is how the work is reasonably perceived, not the artist’s stated intent. Furthermore, the fourth fair use factor (market effect) weighs in Prince's favor because his work appeals to a completely different market of collectors and does not usurp the market for Cariou’s photographs. Given the highly transformative nature of twenty-five of the works, the fair use defense applies to them. The case is remanded for the district court to determine whether the five remaining, less-altered works are also a fair use.
Concurring-in-part-and-dissenting-in-part - Judge Wallace
No, the appellate court should not make the fair use determination itself. While the majority is correct that the district court applied the wrong legal standard, the proper remedy is to remand the entire case for re-evaluation under the correct standard. The majority oversteps its appellate role by acting as an art critic and making a fact-intensive determination about which works are transformative. The district court, as the fact-finder, is better positioned to analyze all the evidence, including the artist's statements, and apply the correct law to all thirty paintings. There is no principled reason to decide the fate of twenty-five works at the appellate level while remanding only the five 'close calls.'
Analysis:
This decision significantly broadens the scope of transformative use within the fair use doctrine, particularly for appropriation art. By rejecting the requirement that a secondary work must comment on or critique the original, the court provides greater protection for artists who recontextualize existing works to create new aesthetics and meanings. This shifts the focus from the artist's intent to the objective appearance and perception of the new work. The ruling makes the transformative use inquiry more flexible but also more subjective, potentially leading to less predictable outcomes as it relies heavily on a judge's assessment of artistic expression.
