Photography trade associations weigh in on Cariou versus Prince case
Representatives of image licensing giants Corbis and Getty file friend-of-court briefs in favour of Cariou
By Laura Gilbert. Web only
Published online: 01 February 2012
new york. Cariou versus Prince is shaping up as the most significant still-photography copyright case in perhaps a century, as two trade associations representing the twin giants of image licensing—Corbis and Getty Images—as well as other photo archives and 7,000 individual photographers filed a joint “friend-of-the-court” brief late on Wednesday night, right on the deadline.
The brief was submitted to the US Court of Appeals in New York, where the appropriation artist Richard Prince and the dealer Larry Gagosian and his gallery are appealing against a lower court ruling that they infringed Patrick Cariou’s copyrighted photographs when Prince used them, without Cariou’s permission, in a series of paintings called “Canal Zone” exhibited at the Gagosian Gallery.
The Photographers Archive Council of America, which represents Corbis and Getty, and the American Society of Media Photographers came out in favour of Cariou.
Much of the commentary on the case has focused on the ruling as a perceived threat to artists’ freedom of expression. The trade groups are quick to point out, though, that “this case is really about two artists”, Prince and Cariou, and that “copyright law does not distinguish between different types of creators or works.”
The trade groups also emphasise the significant economic and intellectual property ramifications if the lower court decision is overturned.
The defendants contend on appeal that Prince’s work “has no negative impact on Cariou’s market”–meaning that Prince’s “Canal Zone” works sold for as much as $2.4m each and Cariou’s works sell for sums in the low four figures–and therefore “Prince’s work does not in any way diminish Cariou’s incentive to create.”
The photographers and licensing agencies argue that a ruling in favour of Prince, an artist “who decides to use a work but cannot be bothered to ask permission and pay a fee”, would harm all photographers and photo agencies. They say that they rely on licensing for their livelihoods, and that reversing the lower court ruling would impair the US constitution’s guarantee of copyright for a limited period, destroying their incentive to create and their ability to support themselves.
Getty and Corbis alone handle tens of millions of images worldwide, and although no figures are available for these privately owned companies, in 2007 CNNMoney magazine estimated their combined annual sales at more than $1bn.
Removing the economic incentive to create new work would not only be contrary to US copyright law, the brief argues, “it would effectively kill the golden goose”, the creation of the very photographs that appropriation artists such Prince use in their work. “Appellants, by their own admission, made millions of dollars from Prince’s works. Without Cariou and others who make original copyrighted images, Prince’s own works could not exist,” the brief states. Cariou filed his own brief last week.
Most problematic for Prince is his testimony that he had no interest in the original meaning of Cariou’s photographs, but merely wanted to create “balls-out, unbelievably looking great painting”.
This admission was a substantial reason the district court rejected his argument that his paintings were “transformative” and therefore not infringing. Under the court’s test, to be transformative Prince’s work had to comment on or refer back to Cariou’s.
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