Earlier this month, the Andy Warhol Foundation for the Visual Arts submitted a brief urging New York federal appeals court to reverse the holding in Cariou v. Prince, 784 F.Supp.2d 337 (2011) (ruling that thirty some paintings by Richard Prince have infringed copyrights in photographs owned by Patrick Cariou). The decision created confusing in art circles and rekindled the debate on what artists may and may not do when they take works of other artists for their own creative purposes.
To review, the decision, handed down earlier this year, found that Prince infringed Cariou’s rights when he appropriation images from Cariou’s book “Yes, Rasta” for his Canal Zone series. The use was not protected by the “fair use doctrine” of the Copyright Act. Subsequently, Prince’s works were seized, and now they are at Cariou’s mercy, subject to potential destruction.
In the report released by the Warhol Foundation, the Warhol Foundation’s Chair, said “the position of the Foundation is that the District Court gravely misconstrued that doctrine and in so doing not only jeopardized the status of existing works by a range of artists but also created such uncertainty in the field as to cause a chilling effect on the creation of new works.”
Some of the contributor’s to the brief, including Virginia Rutledge, an art historian and attorney based in New York, and Anthony T. Falzone, Executive Director of the Fair Use Project and counsel for the Foundation, participated in a lively discussion at the New York City Bar Association on December 13, 2011, on the panel “What We Talk About When We Talk about Appropriation: Contemporary Art After Cariou v. Prince.” Elsewhere, Falzone has been quoted as saying “The fair use doctrine is the most important tool courts have to ensure that copyright does not choke the creativity it is supposed to foster. Artists should not have to hire a lawyer to make art, and we’re suggesting an approach that provides clearer protection for the free expression interests of artists and the public.”
A PDF version of the Warhol Foundation’s brief is available here.
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Thaler v. Perlmutter, Civil Action No. 22-1564 (BAH) (D.C. Aug. 18, 2023).
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