Appeals Court Overturns Richard Prince Ruling In Victory For Fair Use & Appropriation Art

from the that's-more-like-it dept

It was over a year ago when we last wrote about Richard Prince, the famous appropriation artist who was sued by photographer Patrick Cariou, whose photos Prince had used in various collage paintings. In a very troubling ruling, the judge in that case rejected Prince's fair use defense in a summary judgement, and ordered all 30 relevant works be turned over to Cariou to be sold or destroyed as he saw fit. This was a shock to the art world, where appropriation art has been a popular and highly-respected art form for years, with Prince as one of its best-known practitioners.

Today, we get some good news: the appeals court has overturned the decision (pdf and embedded below) and found 25 of Prince's paintings to be fair use, while sending the other five back to the lower court so the fair use defense can be properly considered rather than summarily dismissed. There are a few oddities in the details, but overall this is a fantastic ruling that includes some excellent language about fair use.

One of the most disturbing parts about the earlier ruling was that the lower court completely dropped the ball on its interpretation of fair use, incorrectly stating that in order to qualify for fair use, a new work must be commenting on or criticizing the original work. That's plainly wrong, and the appeals judge set the matter straight:

The district court imposed a requirement that, to qualify for a fair use defense, a secondary use must “comment on, relate to the historical context of, or critically refer back to the original works.” Cariou, 784 F. Supp. 2d at 348. Certainly, many types of fair use, such as satire and parody, invariably comment on an original work and/or on popular culture. For example, the rap group 2 Live Crew’s parody of Roy Orbison’s “Oh, Pretty Woman” “was clearly intended to ridicule the white-bread original.” Campbell, 510 U.S. at 582 (quotation marks omitted). Much of Andy Warhol’s work, including work incorporating appropriated images of Campbell’s soup cans or of Marilyn Monroe, comments on consumer culture and explores the relationship between celebrity culture and advertising. As even Cariou concedes, however, the district court’s legal premise was not correct. The law imposes no requirement that a work comment on the original or its author in order to be considered 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 preamble to the statute. Id. at 577; Harper & Row, 471 U.S. at 561. Instead, as the Supreme Court as well as decisions from our court have emphasized, to qualify as a fair use, a new work generally must alter the original with “new expression, meaning, or message.”

Of course, even this judge seems to have a few facts muddled, considering "parody and satire" cannot be casually linked together like that in the context of U.S. copyright law — one is a well-established and codified form of fair use, the other enjoys no such protection. In fact, the initial court's talk of comment and criticism seems to have stemmed from confusion between the standards for fair use in general, and the standards for parody specifically (where commenting on the original is indeed a requirement).

There's more good stuff about fair use, including lots of citations, to be found in the ruling, which should be read by anyone who still claims that copyright is a natural right or that stronger copyright always means more creativity:

The purpose of the copyright law is “[t]o promote the Progress of Science and useful Arts” U.S. Const., Art. I, § 8, cl. 8. As Judge Pierre Leval of this court has explained, “[t]he copyright is not an inevitable, divine, or natural right that confers on authors the absolute ownership of their creations. It is designed rather to stimulate activity and progress in the arts for the intellectual enrichment of the public.” Pierre N. Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105, 1107 (1990) (hereinafter “Leval”). Fair use is “necessary to fulfill [that] very purpose.” Campbell, 510 U.S. at 575. Because “‘excessively broad protection would stifle, rather than advance, the law’s objective,’”


The “ultimate test of fair use ... is whether the copyright law’s goal of ‘promoting the Progress of Science and useful Arts’ ... would be better served by allowing the use than by preventing it.” Castle Rock, 150 F.3d at 141

Since the court goes through a full fair use analysis, there's lots of good stuff on issues other than the transformative one too. The ruling clarifies that neither the "commercial use" aspect nor the "amount of work copied" aspect of fair use is determinative, and explains why Prince's work qualifies for fair use even though it is commercial and often uses Cariou's photos in their entirety.

But there's still a somewhat problematic side to this ruling, and that's the aforementioned distinction of five works from the rest. It brings us back to a problem we talked about a lot last year when this case was in the courts: judges playing art critic. The fact that fair use is so vague means that, every time it's tested, it starts to turn into an argument about whether a piece of art is "good" or "worthwhile" — a subjective standard if there ever was one. Among the five that have been sent back to the lower court is the most famous of them all (Cariou original on the left, Prince work on the right):

The ruling draws a distinction between that and one of the other works that it declared to be fair use (again Cariou left, Prince right):

In that comparison, it's not hard to see how the latter example changes the original "more" than the former. But that's where the obviousness ends. The true challenge is drawing that line, which the appeals court was not prepared to do:

As indicated above, there are five artworks that, upon our review, present closer questions. Specifically, Graduation, Meditation, Canal Zone (2008), Canal Zone (2007), and Charlie Company do not sufficiently differ from the photographs of Cariou’s that they incorporate for us confidently to make a determination about their transformative nature as a matter of law. Although the minimal alterations that Prince made in those instances moved the work in a different direction from Cariou’s classical portraiture and landscape photos, we can not say with certainty at this point whether those artworks present a “new expression, meaning, or message.”

The problem is that I don't think anyone can say with "certainty" what the meaning of a piece of art is, and that includes the artist themselves. In some cases, it seems like the most sensible approach would be to rely on experts — in this case the many galleries around the world that have showcased Prince's art, and the many critics who have praised it (or, for that matter, condemned it — a new meaning doesn't have to be something people like). Of course, there are potential problems there, too: many an important art movement was rejected by the established community at its outset.

Overall, the most important part of this ruling is that it overturns the ridiculous assertion that comment and criticism is the only form of fair use — but other than that, it fails to provide much clarity. I'm not certain any court could. There's no way to guess what the lower court will decide once it goes through the fair use test with the remaining five works, to the point that the question is almost entirely a matter of opinion, and it's not hard to envision a ruling in either direction. Whenever you have that much uncertainty on a point of law, something needs to be fixed.

Reader Comments

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  1. identicon
    Anonymous Coward, 26 Apr 2013 @ 5:23am

    Re: Re: Re: Re: Re: Feature, not bug

    Er... this actually happened in the 70s. Someone did a huge collage with lots of tiny photos and prints all cut up and glued to the canvas, with a tiny Mickey Mouse in the lower right hand corner of the collage. Disney sued and lost. I actually saw the original art on this at the Illustrator's League in Manhattan in the late 70s. You can legally do a collage and use whatever image you like without any permission. There is no question about this. There are tons of other questions about tons of other fair use, but not the collage thing.

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