Art law USA

Patrick Cariou wins copyright case against Richard Prince and Gagosian

Judge orders that all infringing copies of Cariou’s Rastafarian photos be impounded and destroyed

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

new york. A US District judge has ruled in favour of photographer Patrick Cariou in his copyright lawsuit against artist Richard Prince.

Cariou originally filed suit for copyright infringement against Prince, Larry Gagosian, Gagosian Gallery, and Rizzoli books in December 2008 after a number of his photographs were reappropriated without consent in Prince’s “Canal Zone” series. The photographs first appeared in Cariou’s 2000 publication, Yes, Rasta, a photographic book produced after spending six years documenting Jamaican Rastafarians.

Prince “admits to using at least 41 photos from Yes, Rasta”, according to the judge’s decision, but had claimed “fair-use” for transforming the original works, as opposed to creating derivative images.

US District Judge Deborah Batts has granted Cariou’s motion for summary judgement on the issue of copyright infringement and ordered the defendants to “deliver up for impounding, destruction, or other disposition, as Plaintiff determines, all infringing copies of the photographs, including the paintings and unsold copies of the Canal Zone exhibition book, in their possession, custody, or control and all transparencies, plates, masters, tapes, films, negatives, discs and other articles for making infringing copies.”

The defendants must also notify in writing any current or future owners of the paintings to inform them that the works infringe Cariou’s copyright, and “were not lawfully made under the Copyright Act of 1976, and that the paintings cannot be lawfully displayed”.

At its heart, the case focuses on Prince and Gagosian’s “fair use” defense. This legal doctrine is intended to mediate between the First Amendment and the Copyright Clause, which are “intuitively in conflict”, according to the judge’s decision. Four factors determine fair use.

Firstly, “the purpose and character of the use,” ie the extent to which the new work is transformative. However, rather than adding value solely through transforming elements of the original, the new work must comment on the original in some way, and create something “plainly different from the original purposes for which it was created”, according to the judge’s decision, which refers to the landmark copyright case of Rogers versus Koons: “If the infringement of copyrightable expression could be justified as fair use solely on the basis of the infringer’s claim to a higher or different artistic use...there would be no practicable boundary to the fair use defense.” In the earlier case, Koons failed to prove that his “parody” of an image of a couple surrounded by puppies, by commercial photographer Art Rogers, constituted fair use.

After noting Prince’s testimony that “he didn’t really have a message” and did not attempt to comment on any aspects of the original, the judge ruled that “there is vanishingly little, if any, transformative element.”

The less transformative a work, the more important its commerciality becomes. The papers quote Gagosian’s sales figures to determine that the “defendants use and exploitation of the photos...was substantially commercial...[which] weighs against fair use”. Gagosian had sold eight of the Canal Zone paintings for a total $10.48m, 60% of which went to Prince, with the remainder to the gallery. Seven other paintings were exchanged for art “with an estimated value between $6m and $8m,” according to court papers. Gagosian gallery also sold $6,784 worth of exhibition catalogues.

“Bad faith” is also taken into consideration. Despite instructing an assistant to contact Cariou’s publisher to buy extra copies of Yes, Rasta, Prince never asked “about licensing or otherwise sought permission to use” the images. “Prince’s bad faith is evident,” ruled Judge Deborah Batts.

The second element is the “nature of the copyrighted work”. The defendants had questioned Cariou’s copyright of the images, asserting that his “photos are mere compilations of facts...arranged with minimum creativity.” The judge ruled against this: “Unfortunately for defendants, it has been a matter of settled law for well over 100 years that creative photographs are worthy of copyright protection,” found the judge.

The third issue taken into consideration in the fair use defense is the “amount and substantiality of the portion of the copyrighted work used”. The judge found that, by appropriating the central figures in Cariou’s publication, Prince had gone “to the very heart of his work. Accordingly, the amount of Prince’s taking was substantially greater than necessary, given the slight transformative value of his secondary use...[which] weighs heavily against...fair use.”

The final deciding factor is the extent to which Cariou’s real and potential markets had been harmed by Prince’s appropriation. The defendants’ claims that “Cariou has not marketed his photos more aggressively (or, indeed, as aggressively as Prince has marketed his paintings) are unavailing,” found Judge Batts, who said that Cariou’s potential market had been “usurped”. Cariou’s real market was also effected after Manhattan gallerist Christiane Celle cancelled a scheduled exhibition of prints from Yes, Rasta because she did “not want to be seen to be capitalizing on Prince’s success and notoriety...and did not want to exhibit works which had been ‘done already’ at another gallery”, according to the papers.

The “Gagosian defendants” were also found “directly liable for copyright infringement” by distributing images of and selling paintings from Canal Zone. In addition, all Gagosian defendants were found as “vicarious and contributory infringers” after the judge ruled the they had “at the very least the right and ability (and perhaps even responsibility) to ensure Prince obtained licenses”. She added: “The financial benefit of the infringing use to the Gagosian defendants is self-evident.”

Cariou had also claimed for conspiracy under the Copyright Act, which was dismissed.

In an emailed statement, a Gagosian spokeswoman said: “Gagosian Gallery declines to comment on the Court’s decision at this juncture. Gagosian remains committed to the promotion of the arts through its continued support of artistic freedom in the studio for appropriation artists, such as Richard Prince, the creator of the Canal Zone series.” It is not known whether the gallery or Prince will appeal the decision.

All parties are due to appear in court on 6 May for a status conference to settle damages and fees.

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Comments

23 Jul 13
16:13 CET

PRIYA CHEN, TIBERIAS

That means you can no longer seek museums or anyone permission in America. However, it should also means the American should go back to the French to learn what appropriation in Art really means.

1 Apr 13
15:15 CET

SLOPPYJAVA, HOLLYWOOD

L.H.O.O.Q was ruled fair use.. I think this art makes a similar statement. I don't really like the images but that's irrelevant isn't it?

18 Jun 12
15:6 CET

MARKANGELO, TORRANCE

CLAUDE NELOMS, ANGLETON I am a 10th Grader Rastafarian at angleton high on pot school and we are learning about copyright infringement and all this is is copy and paste so unprofessional a child as old as picasso could do it. ART I~I ART

17 Jun 12
21:33 CET

PETER BREZA, LOS ANGELES

copyright laws do not trump constitutional rights.read the constitution art is mentioned but not copyright.art has special priveledges like the press does.

10 Nov 11
16:22 CET

CLAUDE NELOMS, ANGLETON

I am a 10th Grader at angleton high school and we are learning about copyright infringement and all this is is copy and paste so unprofessional.

28 Oct 11
15:6 CET

DEREK W., NEW YORK, NEW YORK

Only weak artists infringe the copyrighted works of others. Copyright law balances the needs of the original artist to profit from his works against the needs of the public and other artists to use those works. If the appropriation is not deemed to be a "fair use," and the appropriator has not obtained the copyright owner's permission, he must wait until the work goes into the public domain. Under the current Copyright Act, works generally fall into the public domain 70 years after the artist dies. If you believe the length of copyright is too long, take your complaint up with Congress.

5 Oct 11
15:16 CET

MAX, BERLIN

It would be nice if more artists commented on this issue. I am not a fan of copyright–it was invented not to protect artists but to punish them. This is all starting to sound Orwellian. Scary. Art doesn't care about copyright, only weak artists do.

19 Jun 11
19:12 CET

MR. BROWNE, LOS ANGELES

I have to ask Mr. Lawrence Stanley how he would feel if someone took an image he originally created, pasted a couple of images on top of it in Photoshop then turned around and sold it for millions. That's essentially what happened here. A substantial portion of the original work was used to make money. As such, the original artist should have been compensated by the thief. Who gives a damn whether it usurped the market for the original work? This guy is a disgusting, talentless thief and every cent he earned from his thievery should go to the original photographer.

11 Jun 11
16:31 CET

ALEX, JACKSONVILLE

I just don't get how this guy is considered an artist. It's almost like a joke and he is thinking, "got you idiots who are going to pay me lots of money." I mean it's someone else's picture, that they used their own creativity and skill to capture. Then this guy takes the picture, adds a guitar (not even a painted one). A guitar from someone elses picture, marks out the eyes and mouth like a 2nd grade girl would do to a picture of the boy who ignored her, and it's called art. People paid millions of dollars for that?!? I am all about expression and creativity but I just think this is a joke.

18 Apr 11
0:59 CET

JOAN LANSBERRY, YUMA

First off, Prince's piece does not look like a painting. If it had been a painting, he would have had to put something of himself in the effort. This is a copy~n~paste of Cariou's photo, with a guitar and some facial masking pasted on the top in Photoshop. Not very original, at all!

7 Apr 11
5:27 CET

JILL LORRAINE, AGUADA

One word: respect. Glad to see this. Copyright exists for a reason, and I'm sure the original artist did not appreciate the changes made on the photograph, so a back-room deal was not an option. Sometimes it's really not about the money. I'd rather buy a copy of the original, personally. JL http://contemporary-art.webs.com

5 Apr 11
20:34 CET

LAWRENCE STANLEY, ...

How can one claim that the above image (one of the simpler in the series) usurps the market the original work? Why would someone who wanted Cariou's photo accept an essentially defaced version of it instead? As for the supposed cancellation of a Cariou show because the gallery didn't want to capitalize on Prince's success, this is wishful thinking more than anything. The gallery owner, Celle, actually testified that “I was very committed, I wanted to represent him. We agree on it but we never really pursue it, no.” When asked, “You never got to an agreement?” Celle answered: “No. In general when I do a show with ... an artist, I do not do a show if I don’t represent him, because it’s very expensive to put a show together." Subsequently, when Celle was asked if she ever gave Cariou a contract to review or sign, Celle answered: “No, no. It didn’t go so far.” Prince may be guilty of copyright infringement, but the market for Cariou's work was not hurt by it

3 Apr 11
15:31 CET

RON POLLARD, DENVER

In the type of work that Mr. Prince chooses to engage in, there's one cardinal rule - always remember- "There's a fine line between clever and stupid" Ala Spinal Tap. Stupid is as stupid does. Art is not the spiritual side of business as usual. www.collectingorphanart.com

3 Apr 11
15:31 CET

DENIS, ANGELHOLM

Perhaps had the 'artist' produced a more creative copy the original photography would have forgiven the plagerism. However, with the visual crap that was shown as art with what is a 'sensitive' photograph, one can hardly blame the originator for taking this 'artist' to task. Personally, I think Prince was just taking the piss.

28 Mar 11
19:32 CET

KAREY MAURICE COUNTS, TRENTON

Here we go, I'm so glad again that this nonsense is coming to an end. If the so called artist had any real talent these things wouldn't happen period. Don't blame Andy Warhol he is not here to defend himself and its not his fault these artist don't have an original Idea of there own. "I would so love to go head to head, painting for painting with these bluechip spoiled gallery artist, I could make one stroke on canvas and kick all their A__es, just try me.(Talking to you Larry Gogo) Great comments on this people, we know good art when we see it!!

28 Mar 11
15:7 CET

ELVIS, VEGAS BABY

I guess Warhol's Mustard Race Riots should be destroyed as well.

28 Mar 11
15:7 CET

MICHAEL OHAJURU, HIGH WYCOMBE

This type of thing is not allowed (without permission) in the audio art form - music so it's entirely right that is should be outlawed in the visual art - this is a small step on a longer journey.

28 Mar 11
15:7 CET

ED FIELDS, LEXINGTON, KY

Reminds me of two similar cases a while back. Tom Waits and Bette Midler sued and won over corporate appropriation of their distinctive voices in an attempt to sell product with implied endorsement of the artists.

28 Mar 11
15:7 CET

GREGORYLENT, SHANGHAI

in 100 years this decision will be laughed at as oh-so-primitive, in the light of the well-known existence of collective consciousness, and the interchangability of mediums

25 Mar 11
1:44 CET

GERALD DEXTRAZE, TROIS-RIVIERESM QC

Copying without written permission is robbery and a lot of robbery is happening everywhere in the world of art. I love this verdict. Bravo!

24 Mar 11
21:35 CET

PAULO VERONESE, LIVERPOOL

At last Duchamp and all his Readymade plagiarists - Prince et al aka copy cats - are seen for what they really are. Well done Judge Batts for restoring Cariou's rights to his own work.

24 Mar 11
21:21 CET

LISA PAUL STREITFELD, STAMFORD, CONNECTICUT

Wow! This lawsuit gives so much insight to the evil at work in the commercial art world. What a spiritual violation Prince/Gagosian committed in crossing the "fair use" line so heedlessly -- not only of Cariou but a spiritual community. Bad karma! And how grand that Lady Justice came in the form of a woman!

24 Mar 11
18:18 CET

BIG EATER, DES MOINES

Justice has been served. One artist stealing from another is just plain bad manners as well as dishonest. All of these lawsuits wouldn't have to happen if the artists would just pick up the phone and ask.

24 Mar 11
13:39 CET

MARCUS GOFFE, KINGSTON, JAMAICA

The Ras Tafari community welcomes this Judgment. Mr. Prince’s ‘art’ distorted and misrepresented photographs of Rastafarians. The exhibit defamed the Ras Tafari brethren and sistren photographed, and by extension the entire Ras Tafari community. The exhibit also breached our religious, cultural, moral and intellectual property rights as a traditional minority community. Mr. Prince abused his freedom of expression at the expense of a vulnerable, peaceful, spiritual community and we are glad that his indiscretions have been halted by the Court. Non-Ras Tafari individuals and organisations that exploit and/or misrepresent Ras Tafari imagery, culture, words, symbols, music, art and craft without the prior informed consent of and appropriate benefit sharing with the Ras Tafari community, will be regarded as hostile to the community and treated accordingly. We will continue to vigorously monitor this and other infractions to preserve and maintain our cultural and religious integrity.

23 Mar 11
15:3 CET

SAM PIMENTO, PORTLAND, OREGON

It's hilarious that Ashley Bickerton, another 80's art star, says that it's all about the money, that Patrick Cariou should have shut up, held his nose, and simply demanded a payoff. Perhaps Andy Warhol is to blame if so many art worlders mistake business for art. Prince's work is, quite literally, a travesty, and anyone who thinks Prince's work is art is deluded.

22 Mar 11
23:42 CET

DANIEL TROPPY, ATLANTA

The entire art world is made up with copy rip off artist and in my opinion an art dealer is equivalent to an ambulance chasing attorney and a use car salesman. The whole art world is corrupt and despicable.

22 Mar 11
23:42 CET

GARRY CLARKSON, LEEDS

It is what it is? Well..it actually is not what it is. It is in fact someone else s work stolen to self aggrandize post modern lazy art. Its wrong morally and legally as the judgment proves. About time 'appropriation 'artists' made some more authentic art rather than pillaging other image makers. Walker Evans it aint.

22 Mar 11
23:42 CET

MATTHEW HUNT, VANCOUVER

If it looks like the original photo or image, then it is in copyright violation. Come on people, really? To have 41 different images used without written permission is not right. It's like selling a Picasso as your own work.

22 Mar 11
13:42 CET

ASHLEY BICKERTON, BALI

This is actually my favorite body of Prince's work, so I am saddened it comes to this. Some backroom maneuvering and an out of court settlement would have left all parties a lot happier (and richer) in the end. It looks like there were no real winners here. And btw, I think Cariou's images are fantastic and did have a lot to do with the power of The Canal Zone series. No moral call here, it is what it is.

22 Mar 11
2:54 CET

TY FUJIMURA, BROOKLYN

Great read! Shocking that Gagosian/Prince would let it go to trial, considering how weak their defense was.

22 Mar 11
1:39 CET

ALAN, GROTON

Wow that is quite a damning verdict, worth reading in full. Clearly there is a line and it was crossed substantially. The judge goes out of her way to stress that fair use is just that, and that this was not in any way fair. Fascinating! Alan

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