Art law News USA

Court may consider expert opinions in appropriation case

A judge agreed to accept two amicus briefs that call for art-historical input on five remaining Canal Zone works

Left, a photo of a Rastafarian from Patrick Cariou's "Yes, Rasta" and, right, the painting Graduation from Prince's Canal Zone series

A district court judge agreed on Wednesday to accept a “friend-of-the-court” brief submitted by two artist foundations in the ongoing lawsuit between Richard Prince and Patrick Cariou. The brief, submitted on 23 October by the Andy Warhol Foundation for the Visual Arts and the Rauschenberg Foundation, encourages the court to consider the opinions of art historians and the broader art community when deciding whether five paintings from Prince’s “Canal Zone” series infringed on Cariou’s copyright.

Twenty-nine museums and other art organisations, including the Art Institute of Chicago, the Museum of Modern Art and the Association of Art Museum Directors, submitted a letter encouraging the court to accept the brief. The organisations argue that understanding “the context in which an appropriated image is used, and the meaning and the purposes for which it is used, are paramount” to determining if that use is transformative.

The closely watched case between Prince and Cariou began in 2008, when Judge Deborah Batts found that Prince’s 30-work “Canal Zone” series inappropriately borrowed from Cariou’s photographs of Jamaican Rastafarians. A US Court of Appeals largely overturned that decision in April, concluding that 25 of Prince’s works sufficiently transformed Cariou’s material to qualify as fair use.

The remaining five works were sent back to the lower court, where Judge Batts is due to re-consider if a “reasonable observer” would regard them as transformative of Cariou’s photographs. Her decision, experts note, could clarify murky aspects of the higher court's ruling, such as exactly how much an artist must alter source material to create "transformative" work and what kind of evidence a court should take into account in order to make that decision.

In their brief, the artist foundations ask the court to consider new testimony from the art historians Nancy Spector and Brian Wallis, “who may assist the Court in determining whether there exists a reasonable observer who would perceive new meaning or message in Prince’s paintings”.

Cariou’s lawyer asked the court to disregard the foundations’ arguments on Thursday and reject testimony from the experts, who “inhabit the inbred, commercialised, postmodern art world”. Instead, he writes, the court should observe the precedent set by the Court of Appeals and base its decision on visual observation, “without any investigation into why Prince appropriated these photographs or the art-historical context behind these appropriations”. Judge Batts denied Cariou's request.

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