Fair Use Defense Rejected in Copyright Infringement Case
The fair use defense of “appropriation artist” Richard Prince was rejected by a judge in the Southern District of New York in a copyright infringement action brought by photographer Patrick Cariou claiming that Prince had misappropriated his work. Cariou v. Prince, et al., No. 08 Civ. 11327 (S.D.N.Y. March 18, 2011)
Cariou, who had photographed Rastafarian subjects for his book, “Yes, Rasta” brought a copyright infringement suit against Prince and the Gagosian Gallery, Inc. in New York City, as well as owner Lawrence Gagosian, over a collage painting made from photographs torn from a copy of Cariou's book.
Copyright Infringement Claims
In defense of the copyright infringement lawsuit, the defendants asserted that the paintings made fair use of copyrighted photographs under 17 U.S.C. § 107. In granting summary judgment to the plaintiff on the copyright infringement claims, the court rejected the fair use defense, finding that the use was not transformative because it failed to comment on or refer to Carious’s work in any meaningful way.
A key issue in ascertaining the applicability of the fair use defense in copyright litigation is whether the second work is a transformative use, transformative in that it adds something that alters the first with new meaning, expression or message.
Transformative works are more likely to be found to be a fair use in copyright litigation lawsuits. Cariou, however, argued that his use of copyrighted materials as the raw ingredients of a new creation was fair use per se. He conceded that his work did not seek to comment on or attempt recast or adapt the photos.
Fair Use Requires a Transformative Use
Rather than being transformative, and thus potentially fair use, the court in its finding of copyright infringement held that the collages of photographs were simply derivative works in which the original author still held the exclusive right. The court also noted Cariou had made no attempt to secure the permission of the original author, finding that the failure to do so was evidene of bad faith.
The court also held that the use of the work was substantially commercial, that the original work was highly creative and that Prince had used a substantial portion of the Cariou works in his paintings. Finally the court found that the original market for Cariou’s photos had been unfairly damaged in that an exhibition was cancelled after a nearby gallery cancelled a show of his work.
Vicarious and Contributory Infringement
Having rejected the fair use defense, the court went on to hold that the Gagosian Gallery and its owner were also liable on the copyright infringement claim as vicarious and contributory infringers. The court found a record establishing that the gallery handled the marketing, published a catalog and had otherwise promoted the infringing works.
