Copyright Law - Fair Use - Second Circuit Holds That Appropriation Artwork Need Not Comment on the Original to Be Transformative

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Fair use is a carve-out to a copyright owner's statutory rights when enforcement of those rights "would stifle the very creativity which [copyright] law is designed to foster." (1) in Campbell v. Acuff-Rose Music, Inc., (2) the Supreme Court adopted an analysis for the first of the four statutory fair use factors (3)--"the purpose and character of the use" (4)--that asks whether the secondary use is "transformative." (5) Since Campbell, courts have developed a variety of definitions of "transformation," (6) the narrowest being that a work must be a parody (7) and the broadest that a work must manifest a different purpose than the original. (8) Recently, in Cariou v. Prince, (9) the Second Circuit held that a series of photographic collages described as "appropriation art" qualified as fair use despite the fact that both the collage and the original photographs served similar expressive purposes, albeit in very different manners. (10) The court adopted the broadest definition of transformation to date, which, though formally reliant on the language in Campbell, relaxed the requirements for transformativeness such that a work need only show "new expression, meaning, or message." (11) Because of the variety of prior definitions and the broad language in Campbell, (12) the Cariou rule is not precluded by precedent. However, such a broad formulation blurs the line between a transformative work and the right to prepare derivative works under 17 U.S.C. [section] 106(2), (13) and the court does not provide an aesthetically neutral method of distinguishing between the two. Unless and until the statute is changed, future courts should resolve the tension in a way that both preserves the derivative work right and precludes value judgments of new art forms.

In 2000, photographer Patrick Cariou released a book entitled Yes, Rasta containing portraits of Rastafarians and the Jamaican landscape. (14) Richard Prince, a well-known appropriation artist, then incorporated photographs from the book into a series of collages entitled Canal Zone (15) without Cariou's permission. (16) in some of Prince's works, only pieces of Cariou's pictures had been included; (17) in others, entire photographs had been appropriated and altered only slightly--in one case by painting "lozenges" over the subject's eyes and mouth and pasting a picture of a guitar over his hands. (18) in late 2008, the Gagosian Gallery in New York exhibited the full Canal Zone series to commercial success. (19) Before Prince's Gagosian show began, a gallery owner contacted Cariou about the possibility of an exhibit in New York City, but Cariou's exhibit was canceled after the gallery owner mistakenly thought Cariou was working with Prince. (20) Cariou sued Prince, the Gagosian Gallery, and Lawrence Gagosian, the gallery's owner, for copyright infringement in the Southern District of New York. (21)

In the district court, Prince asserted fair use as a defense. (22) On the first fair use factor, the purpose and character of the use, Judge Batts held that Prince's works would be "transformative only to the extent that they comment on the [original] Photos." (23) Relying in part on Prince's own testimony that he did not have a particular message he wanted to convey, (24) the court held that his works were only "minimal[ly]" transformative overall. (25) in light of the court's finding on the transformativeness inquiry, and in light of its findings of both substantial commerciality and bad faith, the court held that the first factor weighed against Prince and the gallery. (26)

The court found that the last three fair use factors weighed against Prince as well. On the second factor, the nature of the copyrighted work, the court found Cariou's photographs to be both highly creative and published works, which "fall [] within the core of the copyright's protective purposes. …


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