Media and Entertainment Law Newsletter, April 2014

04/23/2014

Landmark Fair Use Case, Cariou v. Prince, is Really, Really Over This Time, Settling on Remand 
by Lisa Normand

A closely-watched copyright infringement case testing the limits of fair use is finally over, the parties having reached a settlement agreement in March 2014.1 With this, the five-year battle between photographer Patrick Cariou and "appropriation artist" Richard Prince comes to a quiet close.

The lawsuit stemmed from New York's Gagosian Gallery's 2008 display of Prince's "Canal Zone" series of thirty paintings that collaged, enlarged, cropped, tinted, or painted over, to varying degrees, images taken from Cariou's "Yes, Rasta" book of photography.

On March 18, 2011, the district court for the Southern District of New York granted Cariou's Motion for Summary Judgment, ruling that Prince could not avail himself of the fair use defense, in large part because his works did not transform Cariou's photographs in a way that commented on the originals. Prince appealed to the Second Circuit, drawing support from arts organizations like The Andy Warhol Foundation for the Visual Arts, The Metropolitan Museum of Art, and The Museum of Modern Art—all with an interest in defending the legality of appropriation art.

On April 25, 2013, the Second Circuit largely overturned the district court's ruling, finding not only that the district court erred in requiring that Prince's works had to comment on the originals in some way to qualify as fair use, but also that twenty-five of the thirty paintings at issue constituted fair use of Cariou's photographs as a matter of law. The court concluded that a "reasonable observer" would perceive those twenty-five works as having altered the originals by adding "new expression, meaning, or message." The remaining five paintings were deemed not dissimilar enough from Cariou's photographs to warrant a fair use finding on appeal and would have to be reevaluated by the district court, this time applying the appropriate standard.

Meanwhile, Cariou petitioned the U.S. Supreme Court to consider whether the Second Circuit had correctly determined that the twenty-five Prince paintings constituted fair use, but, on November 12, 2013, the Supreme Court declined to hear the case, leaving in place the Second Circuit's articulation of the "reasonable observer" standard and its ruling that Prince's paintings made fair use of Cariou's photographs. For some followers, this meant the epic legal battle between Prince and Cariou had concluded with a cementing of a standard that many viewed as having broadened protection for appropriation artists at the expense of copyright owners.

For others, attention quickly turned back to the district court in hopes of teasing out practical lessons from how the district court would eventually rule on the remaining five paintings, which the Second Circuit had deemed "closer questions." Indeed, the Andy Warhol Foundation and some thirty other arts organizations stayed in the fray by filing amicus briefs with the district court, weighing in on what additional evidence and factors should be considered in assessing fair use when transformativeness is not readily apparent. Further rulings on the application of the Second Circuit's standard to the five remanded works could have potentially gone back up on appeal giving copyright owners an opportunity to regain some lost ground. But, the parties settled the case before the district court ruled on the remaining five paintings.

In the end, Cariou v. Prince has left little satisfaction for those desiring clear guidance. When the case settled, practitioners and artists (and judges) alike lost an invaluable opportunity to see how the Second Circuit's "reasonable observer" standard would have played out in the very same case in which it was articulated. Fair use, thus, remains, as the U.S. Supreme Court noted in Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569 (1994), an open-ended, context-sensitive inquiry. Those seeking to protect and enforce property rights should be mindful that courts following the Second Circuit's lead may be more likely to make fair use determinations as a matter of law simply by viewing works side by side and employing the court's own aesthetic sensibilities. At the same time, artists who rely on the work of others, whether it be appropriation art, music sampling, or the like, should be prepared to defend their works and demonstrate how they have contributed new creative expression to the original works. 

For more information contact Laura Lee Prather at laura.prather@haynesboone.com or 512.867.8476 and Tom Williams at thomas.williams@haynesboone.com or 817.347.6625.

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1 Cariou v. Prince, 784 F. Supp. 2d 337 (S.D.N.Y. 2011), rev'd, 714 F.3d 694 (2d Cir. 2013), cert denied, 2013 WL 4522074 (Nov. 12, 2013).

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