The Appropriation Artist & Fair Use: Defining “Transformation” after the Second Circuit’s Decision in Cariou v. Prince

A widely noted ruling from the federal appeals court in New York has given comfort to many art enthusiasts by giving particularly broad leeway to an artist who used a photographer’s images as part of his own work.  Overturning the lower court’s decision, the Court of Appeals for the 2nd Circuit ruled last month that artist Richard Prince did not overstep the boundaries of copyright law by incorporating photographer Patrick Cariou’s images into his own work.  The decision’s impact on how “fair use” is determined outside of the fine arts arena remains to be seen.

Cariou, a photographer, spent six years photographing Rastafarians and Jamaican landscapes and published a collection of his photographs in a book titled Yes Rasta.  Cariou sought to portray his subjects in a “classical” manner, and to steer away from the pop culture aesthetic.  Yes Rasta enjoyed only modest success; Cariou made approximately $8,000 in royalties from book sales.

Prince, a well-known appropriation artist, creates art by integrating existing art objects into his work.  In this “appropriation” style, Prince tore 35 photographs from Yes Rasta, altered them in various ways, and pinned them to a piece of wood, creating an original – and highly valued – work he titled Canal Zone.  Offended at this repurposing of his photographs, Cariou sued Prince for copyright infringement.

Below are three examples of photographs from Yes Rasta that Prince incorporated into Canal Zone.

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You can compare the original photographs to the versions that Prince used in Canal Zone, pictured below.

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Prince argued that he used Cariou’s photographs in a way that is protected as a “fair use” under the Copyright Act.  The Copyright Act provides that the use of others’ work for purposes such as criticism, comment, news reporting, or academics is “fair” (i.e., legal) under certain circumstances.  The determination of whether a use is “fair” is nuanced and fact-specific, but the analysis of whether the original work is used in a “transformative” way often bears significant weight in the decision.  Generally, the new work must create new meaning or serve a different purpose than the original in order to qualify as “transformative.”

According to the lower court, Prince’s work did not meet this standard.  The court concluded that Prince did not make fair use of Cariou’s work, relying strongly on the conclusion that Prince’s work did not comment on the original photographs.  Finding in favor of Cariou, the court required that Prince hand over his artworks to Cariou so that Cariou could sell, destroy, or otherwise dispose of them.

The appeals court disagreed, at least when it came to all but five of Prince’s pieces.  Comparing the two artists’ works, the court observed that Prince manipulated the photographs to such an extent that they no longer resembled the originals: “Where Cariou’s serene and deliberately composed portraits and landscape photographs depict the natural beauty of Rastafarians in their surrounding environs, Prince’s crude and jarring works, on the other hand, are hectic and provocative.”  Importantly, the appeals court determined that the district court was fundamentally wrong in requiring that a new work comment on the original work in order to qualify as fair use.  The court minimized the importance of Prince’s explanation of his intent in creating the work (Prince testified that he did not intend to create artwork with new meaning), and instead considered the way in which Prince’s work would be perceived by viewers.  With the viewers’ perspective in mind, the court held that Prince’s work was transformative because the presentation and message of his work differed from those of Cariou’s photographs.

The decision leaves open a number of questions:  How does the Second Circuit’s evaluation of the transformative nature of a work affect authors and publishers?  According to the court, the use of another’s work may be fair even if it does not criticize or comment on the original work, so long as it sufficiently alters the original.  The court’s conclusion that Prince’s work differed from Cariou’s was based, in large part, on a visual comparison of the pieces.  This suggests that a magazine could rely on the fair use doctrine to publish a photograph in connection with an article – even if it used the photograph as an illustration rather than as the subject of the article – so long as the magazine altered the photograph in such a way that a reasonable observer would conclude that the images had a “fundamentally different aesthetic.”    If a magazine took adequate steps to stylize a photograph, its use would seem to qualify as “fair.”

The decision provides little guidance, however, as to just how much manipulation of the original artwork is required.  Did the fact that viewers perceived Prince’s artwork as more valuable than Cariou’s photographs play a role in the court’s conclusion that Prince transformed Cariou’s work?  In contrast to Cariou’s $8,000 in royalties, Prince sold eight artworks based on Cariou’s photographs for a total of $10,480,000.  Although it’s possible to attribute the financial success of Prince’s work to his superior reputation and publicity, it’s also possible that his modifications to Cariou’s photographs – however minimal the district court observed them to be – resulted in the increase in value of the photographs.  This evidence of “transformation” may have helped Prince’s argument that Canal Zone expressed ideas that were not apparent in the original photographs.

Finally, does the Second Circuit’s decision support the purpose of our copyright law (which, according to the court’s definition, is to “stimulate activity and progress in the arts and intellectual enrichment of the public”)?  On one hand, the decision may be a disincentive for artists like Cariou, whose creative efforts are taken over by others, free of charge, to create new art.  On the other, restricting appropriation would limit artists from employing a technique that is central to contemporary art.  The Second Circuit’s subjective and fact-specific analysis of the transformative nature of Prince’s work does little to clarify the line between fair use and unfair use.  As a result of the historic lack of clarity on the subject, Prince is not the first appropriation artist to be challenged for using this technique.  (Andy Warhol’s series of works called “Flowers” sparked a threat of a lawsuit from the artist whose photographs Warhol used in the series.  The case settled, with Warhol seemingly undeterred from continuing to appropriate others’ work.)  In light of this decision, Prince will not be the last.

If you have questions, please contact Asya Calixto, at 617 456 8110 or acalixto@PrinceLobel.com.

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