Art law USA

Panel of judges hears oral arguments in Richard Prince copyright appeal

Neither side seems to have an advantage as three Manhattan judges make early comments on the case

"Not transformative": Left, a photo of a Rastafarian from Patrick Cariou's "Yes, Rasta" and, right, a painting from Prince's Canal Zone series

Richard Prince’s appeal against last year's court decision that he had infringed the copyright of the photographer Patrick Cariou is underway. On 21 May, both sides made their oral arguments to a three-judge panel in the Second Circuit Court of Appeals.

In March 2011, the New York district court ruled that Prince’s paintings were not “transformative” of Cariou’s photographs and therefore did not come within the “fair use” exception of copyright law. According to Judge Deborah Batts, to be transformative a work must “comment on, relate to the historical context of or critically refer back to the original works”, but Prince testified that he did not care about the meaning of Cariou's work.

The decision has had the art world on alert, not least because the court ruled that Cariou could destroy the unsold paintings. The paintings' future is on hold pending the appeal’s outcome.

In the hearing on Monday, Judge Barrington D. Parker said he was troubled by the potential destruction: “It sounds like something that would appeal to the Huns or the Taliban.” Cariou’s lawyer, however, said his client “doesn’t believe in burning books or anything like that… We don’t want the art destroyed”.

Neither party seemed to have an advantage in the case. Judge J. Clifford Wallace said, twice, that he thought ten of Prince’s paintings were not transformative. Meanwhile, Parker scoffed at Cariou’s argument that Prince’s actions harmed the market for his works, pointing to the different price structure: Canal Zone works have sold for millions, while the photographs they are based on, only a couple thousand. “That goes against you,” he told Cariou’s lawyer, adding that the two artists have different audiences, with Prince’s “on this side of the river”, in Manhattan, as opposed to the cheaper Brooklyn, where books of Cariou’s photographs were sold.

Prince’s main argument in the appeal is that the transformative aspect of the series should not depend on what he initially said about his intentions, but on “whether the work adds something new” as seen by others. That spurred Parker to ask: “How are we supposed to do that?”

“Does your test depend on the intellectual sophistication of a judge?” Parker wondered. His colleagues might frequent the Met, he said, but “I might be up at Yankee Stadium. Your test might not take care of that.”

The judges also disputed Prince’s argument that the lower court should have analysed each of the paintings separately rather than decided that the series as a whole infringed copyright. Cariou’s brief argues that Prince’s lawyer failed to object on those grounds at the time, barring a future challenge. “That’s a pretty good argument,” Wallace said.

The trio of judges did not necessarily veer towards Cariou’s lawyer, either, who skirted several questions by saying that Prince could have easily obtained a license or used public domain work. The judges pressed him especially hard on the injunction, which, in addition to allowing the paintings to be destroyed, prevents Prince and his gallery from selling Canal Zone works. An injunction is usually granted when a party would suffer irreparable harm without it. “How is [Cariou] harmed?” Parker asked.

The court will now deliberate on the case, and a decision is not expected for some months.

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25 May 12
17:4 CET


Cariou's photos were copyrighted. Prince ignored the copyright. Different audiences are irrelevant, it seems to me, as are different prices. If Prince prevails, it will mean the end of copyright protection. Yet that doesn't seem to have been mentioned as an issue. I suspect if the judges rule in favor of Prince, this case will go to the Supreme Court.

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