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Is Cariou v. Prince Headed to the Supreme Court?

Photographer Patrick Cariou is expected to file an appeal with the Supreme Court within the next three months in the next installment of the closely watched copyright infringement case, Cariou v. Prince. In a disappointing result for the photographer in April, the United States Court of Appeals for the Second Circuit overturned the 2011 District Court decision, holding that contemporary artist Richard Prince’s appropriation of photographs from Cariou’s book “Yes Rasta” for his own “Canal Zone” series was protected under the fair use doctrine (reported here).

Following that decision–which was decided by a three-judge panel, Cariou had petitioned for his case to be reheard by thirteen judges on the Second Circuit Court of Appeals in May. This request was denied on June 10. Dan Brooks, Cariou’s lawyer, has said that the next step is to file an appeal with the Supreme Court, which must be done within 90 days of the Second Circuit’s refusal to rehear the case.

The Supreme Court receives thousands of petitions for review each year, but only hears a small percentage of those cases (in 2010, it heard 1%). Brooks stated that he has “no idea” whether the Supreme Court will take on Prince v. Cariou. “If they think the law needs to be settled or there is a conflict between the circuits, they may agree to hear the case.”

The Second Circuit’s decision has been criticized for not providing sufficient guidance for future appropriation artists and their lawyers as to what actually constitutes fair use. Furthermore, the proliferation of other appropriation art cases (from Shepard Fairey to Mr. Brainwash) also points to a lack of clarity in the area. If the Supreme Court did decide to weigh in on the issue, it could provide clarification as to the legal standards for applying the fair use defense in appropriation art cases, as the art form itself continues to evolve at a quick pace with the development of online and digital technologies.

Source: The Art Newspaper