Has the World Gone Mad? Fair Use Overwhelms Photographer’s Rights in Cariou v. Prince

In my humble opinion, the decision in Cariou v. Prince, Case No. 11 CV 1197 (2nd Circuit, 4/25/13) is wrongly decided.  Self-proclaimed “appropriation artist” Richard Prince took a book of photographs by Patrick Cariou, blew them up to canvas size, and in most works, slightly altered the Rastafarian subject, painting blue lozenges over the subject’s eyes or pasting a guitar’s image onto his body.  However, in others, the defendant obscured the original work, added other artists’ works, and used inkjet printing and acrylic paint.  The lower court held that such use was copyright infringement.

The Second Circuit, reversing the Southern District of New York’s decision, held that the works as a whole were “transformative” and subject to the fair use defense against copyright infringement.  Significantly, the appellate court also held that the newer work need not “comment on the original or its author in order to be transformative, and a secondary work may constitute a fair use even if it serves some purpose other than those (criticism, comment, news, reporting, teaching, scholarship and research) identified” in the Copyright Act’s preamble.

It seems to me that most if not all of the works should be deemed unauthorized derivative works.   The court’s “transformative” conclusion simply leapt over the most important hurdle in the four-part analysis, the “purpose and character of the use”.  The Second Circuit’s eliminating the need to “comment”, or to fit within any of the exceptions set forth in the statute’s preamble, opens the floodgates to deeming virtually any derivative work, and regardless of the amount copied, to be fair use rather than infringing.  Further, enlarging the images from the plaintiff’s book to “100 times the size” of the originals should not be factored into the analysis.  That invites a mere change in form – say, from a painting to a wallpaper design – to create a permissible “fair use” copy of the original work.

Fortunately, as it were, 5 of the 30 works, including the portrait of a Rastafarian which was only changed to add blue over his face and place an electric guitar in his hands, were remanded to the lower court for reconsideration and ultimately may not be subject to the fair use defense:  the court noted that the allegedly transformative works are minimally different from the original.  Indeed,  one judge wrote a concurring opinion, suggesting that the case be remanded to the lower court for reconsideration of each of the works.  I would agree that because the majority of the appellate was not “confident” that those five works could survive scrutiny of additional testimony and evidence, the court also should not determine that the remaining 25 works have, as a matter of law, “a different character” from the originals.  Additionally, a remand is not much of a consolation prize for the plaintiff, and undermines the apparent victory for defendants, as reconsideration by the lower court requires more litigation (for both parties, of course).

It is hard to imagine that original artists may survive and make a living with decisions like this.

On the other hand:  this case trumpets the opportunity for mash-up artists to churn out more works, appropriating and building upon original visual, musical and other works to create new, creative collages.  I’m all in favor of making new works, and applaud novel combinations of aesthetics.  The point is, at the expense of the original artist, the Cariou v. Prince decision seems to maximize that amount that can be appropriated by an “appropriation artist”, and minimize the amount of the non-infringing work that  needs to be purportedly “new.”