Photographer Successfully Sues Appropriation Artist for Copyright Infringement

By Joel L. Hecker,Esq

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Richard Prince, the well known appropriation artist, his gallery, and the gallery’s principal, have all been found to be guilty of copyright infringement in connection with Prince’s paintings which copied professional photographer Patrick Cariou’s copyrighted photographs of Rastafarians in Jamaica. This important case was brought in the Federal Court in New York. The court’s decision was rendered on March 18, 2011.

Background Facts: Cariou spent a considerable amount of time with Rastafarians in Jamaica over the course of some six years. As a result, he gained their trust and was able to take their photographic portraits. In 2000, he published a book of his Rastafarian photographs titled, Yes, Rasta.

Cariou testified about the creative choices he made (as is customary for professional photographers), including equipment used, staging and composing individual photos and techniques and processes. He was also heavily involved in the layout, editing, and printing of the book. Prince is a well known and highly successful “appropriation artist.” His work has been shown at numerous museums and other institutions, including a solo show at the Guggenheim Museum in New York City. Defendant Gagosian Gallery is an art dealer and gallery, which represents Prince and markets his art. Defendant Lawrence Gagosian is the Gallery’s president, founder, and owner. Between

December 2007 through February 2008, Prince showed some of his artwork in St. Barts, including a collage entitled “Canal Zone (2007)” (“Canal Zone”) which consisted of a collage of thirty-five photographs literally torn from Cariou’s book and attached to a wooden backer board. Prince painted over some portions of thirty-five photographs, using some of them in their entirety and some partially. Portions of the collage were also reproduced in a magazine article about Prince’s show at the Gagosian Gallery.

Prince admitted using at least forty-one photos from Yes, Rasta as elements of his Canal Zone paintings. Fair Use Analysis

The primary defense raised by the defendants was that Prince’s use of the photos was a fair use under the Copyright Act and therefore entitled to protection. The purpose of fair use is to address the inevitable tension between the property rights established under copyright’s purpose “to promote the Progress of Science and useful Arts” as contained in the U.S. Constitution and the ability of authors to express themselves by referencing the work of others. The doctrine of fair use consists of a four-factor test.

Factor One –Purpose and Character of the Use

a). Transformative Use This part of the test is the most important one. Its purpose is to determine whether the new work merely supersedes the objects of the original creation, or instead adds something new, with a further purpose or different character. It asks, in other words, whether and to what extent the new work is “transformative.” The more transformative the new work, the less significant are the other factors.

The court found Prince’s use of Cariou’s photos not transformative since they did not recast, transform or adopt an original work into a new mode of presentation. This conclusion was based in part on Prince’s testimony that he had no interest in the original meaning of the photographs he uses, and that he does not really have any message he attempts to communicate when making art. Moreover, Prince testified that he did not intend to comment on any aspects of the original works or on the broader culture. His intent was to pay homage or tribute to other painters.

Prince also testified that he chooses the photographs he appropriates for what he perceives to be their truth. To the court, this suggested that his purpose in using Cariou’s portraits was the same as Cariou’s original purpose in taking them, which was a desire to communicate to the viewer core truths about Rastafarians and their culture.

On these facts, Judge Batts concluded that Prince had no intent to comment on Cariou’s photos, or on aspects of popular culture closely associated with Cariou or the photos, and therefore his work was not transformative.

b). Commerciality The second prong concerns whether the new work serves a commercial or nonprofit educational purpose. In this situation, Prince’s Canal Zone show at the Gallery was extensively advertised and promoted. As a result, the Gallery sold eight of the Canal Zone paintings for a total of $10,480,000, 60% of which went to Prince and 40% to the Gallery. Seven other Canal Zone paintings were exchanged for art with an estimated value between $6,000,000 and $8,000,000.

The court recognized the inherent public interest and public value of public exhibition of art and of an overall increase of public access to artwork. However, it also found that defendants’ use and exploitation of the photos was substantially commercial and, given the overall low transformative content of Prince’s paintings, that this prong of the first factor weighed against a finding of fair use

c). Bad Faith

The courts consider a defendant’s conduct. In this case, Prince testified that he appropriates an image for his use simply based upon the fact of whether he likes the image. Prince’s employee also contacted the publisher of Yes, Rasta to purchase copies of the book, apparently for purposes of tearing pages out for use in the collages, and never asked the publisher or Cariou about permission to use the photos. In addition, the Gallery and Gagosian were aware that Prince was a habitual user of copyrighted work of other artists without permission, and that they never inquired as to whether Prince had obtained permission to use Cariou’s photos, nor ceased their commercial exploitation of Prince’s paintings after receiving Cariou’s cease and desist notice. Therefore, the court found that the bad faith of each defendant was clear and unequivocal.

Accordingly, the first fair use factor analysis weighed heavily in favor of Cariou.

Factor Two – The Nature of the Copyrighted Work

The key distinction in evaluating this factor is whether the original work is expressive or creative, such as a work of fiction, or more factual, in which event there is a greater leeway allowed to a claim of fair use. The court found that Cariou’s photos were highly original and creative artistic works. Consequently, this factor weighed against a finding of fair use.

Factor Three – The Amount and Substantiality of the Portion Used

Normally, this factor weighs in favor of the copyright holder where the portion used was essentially the heart of the copyrighted work. However, an insubstantial taking in and of itself is not excused merely because of that fact. Since Prince appropriated entire photos in a number of his paintings and appropriated the central figures depicted in Cariou’s photos in a majority of his paintings, all of which going to the very heart of Cariou’s work, this factor also weighed heavily against a finding of fair use.

Factor Four – Market Harm

This factor looks to market harm caused by the infringement and whether there is a substantial adverse impact on the potential market for the original. That is, actual harm as well as potential future harm. Actual harm was proved since Cariou’s gallery owner discontinued plans to show the Yes, Rasta photos and to offer them for sale, because Prince’s paintings had usurped the market. As to potential harm, Cariou had indicated that he had intended to issue artists’ editions of his photos for sale to collectors. Accordingly, this fourth factor also weighed against the finding of fair use. Injunctive Relief. The court enjoined and permanently restrained the defendants from infringing Cariou’s copyrights and ordered that Prince’s infringing paintings be delivered up “for impounding, destruction, or other disposition, as Plaintiff determines.”

Furthermore, the court ordered that defendants notify in writing any future or current owners of Prince’s paintings of whom they are or become aware, that such paintings infringe Cariou’s copyright and that the paintings were not lawfully made and cannot be lawfully displayed!

Conclusion This decision is, and if it is upheld on the expected appeal will continue to be, a major victory for photographers in the constant battle against appropriation art.

© Joel L. Hecker, 2011

Attorney Joel L. Hecker lectures and writes extensively on issues of concern to the photography industry. His office is located at Russo & Burke, 600 Third Ave, New York NY 10016. Phone: 1 212 557-9600. E-mail: HeckerEsq[at]aol[dot]com .

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