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Appropriation art found not to infringe copyright

Richard Prince has won his appeal against a first instance ruling in the US that 30 of his works infringed copyright in photographs by Patrick Cariou.  In a victory for appropriation artists, the US Court of Appeals reversed the 2011 decision by the district court that had found for Cariou.  The Court ruled that all but five of Prince’s works were fair use under US copyright law.

Whilst living in Jamaica amongst Rastafarians in the mid-1990s, Cariou took a series of portrait and landscape photographs which he published in 2000 in a book, Yes, Rasta.  Prince subsequently created artworks incorporating images from Yes, Rasta, which he exhibited at the Gagosian gallery in 2008, and which were published in an exhibition catalogue.

Cariou sued Prince, as well as the Gagosian gallery and Larry Gagosian, for copyright infringement.  The defendants asserted the US “fair use” defence, which hinged on the argument that Prince’s works were “transformative” of Cariou’s photographs.

In order to be considered transformative, the district court held that a work must “comment on, relate to the historical context of, or critically refer back to the original works” and, further, that regard must be had as to the artist’s intention.

The appeal court rejected that analysis.  As a matter of law, there is no requirement that secondary use should comment on the original work, but rather that the new work should add some “new expression, meaning or message” to the original.  In addition, the court held that the stated intention of the transformative artist is irrelevant; what matters is how the work appears to the reasonable observer.

Looking at Prince’s and Cariou’s works side by side, the appeal court concluded that 25 of Prince’s works “have a different character, give Cariou’s photographs a new expression and employ new aesthetics with creative and communicative results distinct from Cariou’s”, and thus could be considered transformative.

However, the court was unable to rule on the five remaining works, which it stated, “do not sufficiently differ from Cariou’s photographs”, and referred them back to the district court to reassess whether or not they are transformative under the new standard.

Critics, including the dissenting judge in the case, have questioned the decision to refer only these five works and not the entire set of 30 works back to the lower court.  The dissenting judge remarked: “if the district court is in the best position to determine fair use as to some paintings, why is the same not true as to all paintings?”

The US “fair use” exemption is generally considered to be quite wide.  Indeed, the appeal court referred to case law establishing that the exemption is necessary to ensure that copyright law stimulates activity and progress in the arts and that authors and artists are able to express themselves by reference to the work of others.  However, the court was quick to emphasise that cosmetic changes to a protected work may not necessarily constitute fair use: “a secondary work may modify the original without being transformative.  For instance, a derivative work that merely presents the same material but in a new form, such as a book of synopses of television shows, is not transformative”.

By contrast, the exceptions to copyright infringement in the UK are more limited in scope and the English courts interpret them restrictively.  Whilst the ruling of the US appeal court may provide reassurance to appropriation artists in the US, it is unlikely an English court would come to the same conclusion, and neither appropriation artists, nor galleries exhibiting their work, should consider themselves any less at risk of infringing copyright outside the US.

Hannah Shield

Articles published on this blog reflect the opinion of the stated author of the article only. The information they contain does not constitute legal advice.