By Kristen Niven
On November 13th, Cardozo Art Law Society, with the Intellectual Property Law Society’s Copyright Committee, hosted a lively panel discussion of the recent Second Circuit Court of Appeals decision in Cariou v. Prince. This timely discussion took place the day after the Supreme Court denied cert, leaving the Second Circuit’s decision the standing law on appropriation and fair use in art.
Richard Prince is a well-known artist whose works are displayed in museums around the world and have sold at auction for millions. Considered by many to be the father of Appropriation Art, he has been mining mass culture from advertising and pop culture since the 1970s.
Prince’s appropriation artworks have often been understood to be commentaries on popular culture, re-purposing the imagery from the advertising and revealing the mythology of mass media. For his Canal Zone series, exhibited in 2008 at the Gagosian Gallery, Prince appropriated photographs by Patrick Cariou from his book, Yes, Rasta, a series of portraits and landscapes taken over six years he spent in Jamaica living among Rastafarians. Cariou sued Prince and the Gagosian alleging infringement of his copyrights in the Yes Rasta photos.
[Left: a photo from Yes, Rasta, by Patrick Cariou. Right: Graduation by Richard Prince, from Canal Zone]
The district court granted summary judgment in favor of Cariou. Rejecting the asserted defense of fair use, it held that the use was not transformative, since, among other considerations, the purpose and character of Prince’s work was not to “comment on, relate to the historical context of, or critically refer back” to Cariou’s works themselves.
The Second Circuit Court of Appeals overturned summary judgment and found 25 of the works in Canal Zone to be covered by fair use. The Second Circuit rejected the district court’s test for transformativeness, the “heart of the fair use inquiry”. It held that in order to be transformative, a work must alter the original with a “new expression, meaning or message”, not necessarily about the original work. Furthermore, this is determined by an objective standard of how the works appear to the reasonable observer rather than by the artist’s stated intent. It was this new test for transformativeness in the Second Circuit that sparked a thoughtful debate.
Was this decision good for artists? Was it good for our intellectual property system as a whole? As it turns out, reasonable minds can disagree about the result of this case. The nexus of the debate came down to equally persuasive understandings of the very purpose and heart of American copyright law.
Alan Behr, a renowned IP attorney at Philips Nizer LLP, photographer and art critic, noted the enormous liberties this vague test allowed artists to take in appropriating the intellectual property of photographers without license. Mr. Behr emphasized the property rights inherent to the constitutionally-endorsed copyright law, which were admittedly diminished or made vague for those working from the photography perspective. After Cariou, he argued, virtually any use of a copyrighted work that makes an original expression is carved out of the already limited scope of rights to the work over which a photographer has exclusive control.
John Koegel of the Koegel Group LLP, former General Counsel at MoMa, who has represented Jeff Koons in litigation, celebrated this broadened definition of fair use for artists. His view strongly emphasized the purpose of the copyright law to promote a range of creative expression, making the path for artists to create clear of excessive legal obstruction and red tape. This decision, according to Mr. Koegel, puts forth a standard more appropriate to and reflective of the contemporary art world.
But what does the new transformativeness standard mean for appropriation artists working today? Michael Rips, special counsel at Steptoe and Johnson LLP, who has advised arts institutions including the Whitney Museum and Dia Foundation and represented artists including James Rosenquist and the Dan Flavin estate, generally favored the Second Circuit’s decision not to limit fair use to commentary on the original work. However, he takes issue with the “reasonable observer” standard of objectivity, noting that, in addition to having no clear precedent, the decision leaves a vague and fickle standard that may not accurately reflect the nature and purpose of the appropriating work.
On advising artists in light of this decision, the panel agreed that the law as it stands is certainly more favorable to appropriation artists. However, it leaves attorneys with a diffuse and confusing set of standards to determine whether an artist may be trespassing on the exclusive rights of a copyright holder, or whether the use is sufficiently transformative, from a legal rather than an art-critical perspective, to constitute fair use.
 Cariou v. Prince, 714 F.3d 694, 699.
 Cariou v. Prince, 784 F.Supp.2d 337, 348-349.
 714 F.3d at 705 (citing Blanch v. Koons, 467 F.3d 244, 251).
 Id. at 706.
 Id. at 707.