The U.S. Court of Appeals for the Second Circuit, in a case involving allegations, against an appropriation artist, of infringement of photographs subject to registered copyrights, concluded that a broad fair use defense is available for most of his artistic works.  Cariou v. Prince, Case No. 11-1197 (2d Cir., Apr. 25, 2013) (B.D. Parker, J.) (Wallace, J.; concurring-in-part, dissenting-in-part).

Photojournalist, Patrick Cariou, who had completed and published a book of photographs (Yes Rasta) taken over a period of six years living among the Rastafarians in Jamaica, sued appropriation artist, Richard Prince.  Prince altered and incorporated several of the Yes Rasta photographs into a series of paintings and collages called Canal Zone.  On cross motions for summary judgment, the district court concluded there was copyright infringement (notwithstanding Prince’s fair use defense) and entered a permanent injunction.  Prince appealed, contending his works were transformative and constituted fair use of Cariou’s copyrighted photographs. 

The 2d Circuit vacated the injunctions, finding that the district court erroneously concluded that in order to qualify as a fair use, a work using copyrighted content must comment on the original work.  Rather, as the 2d Circuit explained, copyright law “imposes no requirement that a work comment on the original on its author in order to be transformative and a secondary work may constitute fair use even if it serves some purpose other than those (criticism, comment, news, reporting, teaching, scholarship and research) identified in the preamble to the statute.”

The panel majority concluded that 25 of the 30 accused pieces of art work were transformative and did qualify as fair use.  As for those 25 works, the court noted that Prince’s artworks “manifest an entirely different aesthetic from Cariou’s photographs.”  The 2d Circuit then remanded the case to the trial court to reconsider the remaining five works under the fair use standard explained in the decision.  As for the five works subject to remand the court observed that the images in question “do not sufficiently differ from the photographs of Cariou’s” for the court to rule on them as a matter of law and so remanded for the district court to consider whether the “minimal alterations” in those works render the, fair uses, including a determination of whether they are transformative. 

Judge Wallace (from the U.S. Court of Appeals for the Ninth Circuit, sitting by designation) disagreed with the majority that 25 of the accused works were, as a matter of law, subject to a fair use defense.  Wallace would have remanded the entire case for reconsideration and permit the district court to make all of the necessary factual determinations for each of the accused works “… while I freely admit I am not an art critic or expert, I fail to see how the majority, in its appellate role, can ‘confidentially’ draw a distinction between the twenty five works it has identified as constituting fair use and the five works that do not readily lend themselves to a fair use defense.”