Cariou v Prince: a continuing controversy

September 24, 2011

In March, this blog reported on the 2nd circuit’s ruling on Patrick Cariou’s lawsuit against appropriation artist Richard Prince. Batts granted summary judgment in favor of Cariou on the issue of copyright infringement. The court ordered Prince to destroy millions of dollars worth of his own artwork. Prince appealed.

On September 15th, The United States Court of Appeals for the Second Circuit denied Mr. Cariou’s request to dismiss Mr. Prince’s appeal. The NY Times reported that the court indicated questions raised by the case remained “a continuing controversy capable of redress by this court.”

Rachel Corbett at ArtNet spoke with Prince’s lawyer, Josh Schiller.

“At the heart of Prince’s appeal, according to Schiller, is Batts’ assertion that an artist must explain the meaning of his or her work in hindsight. She wrote that Prince testified himself that he doesn’t ‘really have a message’ and has ‘no interest in the original meaning of the photographs he uses.'”

While it seems fair to say that fair use should not be determined by an artist’s post-commentary, this doesn’t answer all of Batts’ criticisms. Specifically, Batts suggested that Prince’s works failed to comment on Cariou’s works themselves, as is required under the first prong of the fair use test, the ‘the purpose and character of the use’. Indeed – the exhibit may provide interesting social commentary, but the fair use calls for commentary upon the original work itself. According to Randy Kennedy at the New York Times, “That reading of the law was viewed as unusual by many copyright experts, who warned that it could have a chilling effect on art that relies on appropriation, a controversial but well-entrenched postmodern artistic strategy.”

Perhaps Prince really is making a commentary on Cariou’s photographs themselves. Joy Garnett at ArtNet gave an interesting review of the case from an artist’s perspective (and suggested IP lawyers lack necessary understanding). Garnett sees appropriation art as commenting on photography as a mass-producible artform. Maybe Prince’s works are truly one of a kind, whereas Cariou’s are capable of reproduction and mass production, but this idea shouldn’t be confused with the actual elements of fair use or of originality under copyright law.

Presumably these issues will be further explored on appeal, and hopefully important steps will be taken toward clarifying fair use.