Photographs and Richard Prince: The Gifts that Keep on Giving

February 24, 2014

By Irina Tarsis, Esq.

In truth… in art, there are few, if any, things , which in an abstract sense, are strictly new and original through out.” Emerson v. Davies (CCD Mass 1845). J. Story

Remember Cariou v. Prince?

Cariou v. Prince, 11-1197-cv (2d Cir. Apr. 25, 2013) rev’ing 784 F.Supp.2d 337 (S.D.N.Y. Mar. 18, 2011) offers many teachable moments. Starting with the harsh decision by Judge Deborah Batts of Southern District of New York, which ordered the infringing works to be handed over to the Plaintiff for destruction, and ended with the tweet Richard Prince posted when he received twenty-five of his thirty paintings following the Second Circuit Court of Appeals partial reversal of J. Batt’s decision, finding that only five of the works Prince made were not ‘transformative’ as a matter of law. When the twenty-five works were ultimately returned to Prince, he observed that after half a decade of not seeing them he was of the opinion that he should have been sued for “making shitty paintings”.

Copyright in a Nutshell

U.S. 1976 Copyright Law identifies art and photographs as copyright protected works and lists preparation of derivative works as an exclusive right of the copyright owner. 17 U.S. 101, 106. The fair use defense limits the exclusive rights of copyright holders in certain circumstances when the work is used for valid purposes such as but not limited to criticism, comment, teaching or research. There is a famous four-factor test to decide whether “the use made of a work in any particular case is a fair use,” 17 U.S. 107. Unfortunately, there is no way to predict how judges will apply and weigh the four factors due to the high level of discretion afforded to the judges. A couple examples of this occurred recently when the Cariou appeal was pending and California courts ruled in two fair use cases categorically differently – both citing Cariou but one using J. Batts’ decision and the other using the 2nd Circuit decision (see Morris v. Guetta 2013 WL 440127 (Feb. 4, 2013) and Seltzer v. Green Day, 725 F.3d 1170 (C.A. 9th Cir. 2013).

What’s next?

On 16 December 2013, nine organizations and individuals arguing for the rights of photographers to benefit from the derivative use of their copyright protected works submitted an amicus brief in support of Patrick Cariou in his case against Richard Prince for the appropriation of the images from “Yes, Rasta” book for creation of the “Canal Zone” art works. (For background on Cariou v. Prince, read Appropriate Standard in Appropriation Art). Now, the New York Times’ Patricia Cohen reports that photographers are considering turning to Congress for assistance in protecting their works. She quotes Victor Perlman, general counsel for the American Society of Media Photographers, as saying “The courts have taken an approach to fair use that we do not believe was originally intended… A lot of what’s going to have to happen in fair use is going to have to happen on Capitol Hill.”

While it is hard to imagine that this Congress is capable of assisting anybody, one possible avenue to run interference is to modify the Copyright Act to include compulsory licensing for artists who incorporate copyright protected works of others into their work. The idea of having such a licensing scheme is not new; it was raised at least as early as 2002 by co-author of the Art Law treatise, Judith Bresler, Esq., in an article entitled “Begged, Borrowed or Stolen: Whose Art is It, Anyway-An Alternative Solution of Fine Art Licensing.” J. Copyright Soc’y USA 50 (2002): 15.

Richard Prince, whose appropriation of Cariou’s works rekindled the fair use debate, responded to the announcement about photographers appealing to Congress by posting two black and white images on his Twitter account. Entitled “Untitled (protest) Thanks to the National Press Association & The Professional Photographers of America, the pictures include the 2012 Shia Muslims protest condemning killings in north-western Pakistan and a pornographic image of a woman scantily-dressed grasping at her breast and throwing her head back in protest or ecstasy.

The origin of the second image is not easily ascertained; while the credit line for the Pakistan protests indicates that it belongs to Agence France-Press.

Sources: The New York Times; Cariou v. Prince, 11-1197-cv (2d Cir. Apr. 25, 2013); Amicus Brief, Cariou v. Prince, 08 CIV 11327 (DAB) (Dec. 16, 2013).

About the Author: Irina Tarsis, Esq. is the Founder of Center for Art Law; in addition to provenance research and teaching, she focuses her practice on business and art law.  She may be reached at itsartlaw@gmail.com

Disclaimer: This article is intended as general information, not legal advice, and is no substitute for seeking representation.