Fair Use or Not Fair Use—That Is the Question

FACTS: In 2000, Patrick Cariou, a professional photographer, published a book entitled Yes Rasta, containing classical photographs and portraits he took while living in Jamaica for six years. Richard Prince is a successful appropriation artist whose work has been exhibited in several prominent museums. In 2007 and 2008, Prince exhibited paintings and collages called Canal Zone at the Eden Rock Hotel in Saint Barth’s and at the Gagosian Gallery in New York. The paintings and collages incorporate some of Cariou’s copy-righted images from Yes Rasta. Prince used the photographs but altered them in various ways such as by painting “lozenges” over the faces or adding a guitar. In some paintings, Prince added works of other artists to Cariou’s photographs. Cariou sued Prince and Gagosian, alleging copyright infringement. Prince and Gagosian raised the defense of fair use. The lower court held that Prince was not entitled to a fair use defense because “Prince did not intend to comment on Cariou, on Cariou’s Photos, or on aspects of popular culture closely associated with Cariou or the Photos when he appropriated the Photos.” The court ordered all of the infringing works to be delivered to Cariou for “impounding, destruction, or other disposition.”

DECISION: Judgment for Prince. The court emphasized the transformative nature of Prince’s work. Twenty-five of the thirty works appropriated by Prince manifest an aesthetic entirely different from Cariou’s photographs. The serene classical photographs taken by Cariou printed in black-and-white were fundamentally different from the jarring, crude, provocative and colorful works produced by Prince. Prince’s work is transformative because it added something new to Cariou’s photographs, resulting in a fundamentally different aesthetic. The transformative nature of the work impacted the four-factor analysis. The first fair use factor, the purpose and character of the use, does not suggest that commercial uses are presumptively unfair. Even though Prince’s use was commercial, the transformative nature of the work reduces the significance of this factor. The second statutory factor, the nature of the copyrighted work, weighs in Cariou’s favor because the work is creative and published. But again, the transformative nature of the work limits the usefulness of this factor. The third factor, the amount and substantiality of the portion used, weighs heavily in Prince’s favor because the photographs were transformed into something new and different. The fourth factor, the effect of the secondary use on the potential market for the value of the copyrighted work, weighs in Prince’s favor because Prince’s work does not usurp the market for the original work. Prince’s target audience and the nature of his work is distinct from that of the original. Twenty-five of the allegedly infringing works satisfied the fair use factors. Five of the works were remanded to the district court for further con-sideration.

[Cariou v. Prince, 714 F.3d 694 (2d Cir. 2013)]Cariou v. Prince, 714 F.3d 694 (2d Cir. 2013)]Cariou v. PrinceFair Use or Not Fair Use—That Is the Question continued32Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd.,545 U.S. 913 (2005).164PART 1: The Legal and Social Environment of Business