The Second Circuit Weighs in on Transformativeness in the Visual Arts

by Davis Wright Tremaine LLP

A year after hearing oral argument, the Second Circuit has issued its much anticipated decision in Cariou v. Prince on copyright fair use in the visual arts.

As most observers expected, the appellate court rejected the district court’s narrow interpretation of the fair use defense, but the decision still delivered some surprises:

  • The Second Circuit reaffirmed that, for purposes of the first copyright fair use factor, a new work need not “comment on the original artist or work, or popular culture” to be transformative.
  • Because the test is whether a reasonable person would view a use as transformative, an artist’s stated purpose in choosing a source is but one factor in the analysis, which also includes the extent to which the new work contains new expression as embodied in such elements as composition, scale, color, media and general aesthetic.

The discussion below begins with background on the works themselves and the district court opinion, then describes the Second Circuit decision, and closes with a look at the decision’s consequences.

The case involves a series of photographs of Rastafarians taken by professional photographer Patrick Cariou, who published the photos in a 2000 book titled Yes Rasta. After discovering the book, Richard Prince, the highly successful appropriation artist, created a series of thirty canvases he titled Canal Zone. The Prince canvases incorporated many of Cariou’s Yes Rasta photographs, in whole or in part. In a few works, the incorporated Cariou photo is readily apparent as Prince’s material contribution was limited to painting over the subject’s eyes and mouth and other relatively minor elements. In others of the works, Cariou’s original photos were greatly enlarged, cut up, painted over and incorporated with other materials so that the sources are hard to identify. Prince exhibited the Canal Zone paintings at the gallery of his regular dealer, Larry Gagosian, who sold a number of them for a total of over $10 million.

Cariou sued Prince, Gagosian and Gagosian’s gallery for direct and secondary copyright infringement, with the defendants asserting that Prince’s use of Cariou’s photos constituted a transformative fair use. On cross-motions for summary judgment, Judge Deborah Batts found for Cariou. In her fair use analysis, Judge Batts considered the series of works as a whole rather than analyzing each work under the fair use factors. On the key first fair use factor (which looks, inter alia, to whether and to what extent the defendants’ use is transformative), she noted that Prince at his deposition had disavowed any intention to “comment on Cariou, on Cariou’s Photos, or on aspects of popular culture closely associated with Cariou or the Photos.” For Judge Batts, it was not enough that the new work exhibit a very different aesthetic; to be transformative, rather, it must “comment on, relate to the historical context of, or critically refer back to the original works.” On market harm (the fourth fair use factor), she credited the fact that Cariou’s prospective dealer had canceled a show of his Rastafarian photographs when she heard of the Gagosian exhibition. The district court also found that summary judgment against Gagosian was appropriate because Gagosian knew the risks of appropriation art and “had at the very least the right and ability (and perhaps even responsibility) to ensure Prince obtained licenses.” In granting Cariou’s summary judgment motion, the Judge ordered defendants to deliver up the unsold paintings for Cariou to dispose of as he wished, including impoundment or destruction.

The implications of the decision were immediately apparent to the art world, where artists borrow heavily from other artists and from contemporary imagery to create new work, and dealers prefer to avoid questioning their artists about their sources and licensing issues.

Appellate Decision
The Second Circuit reversed in part, vacated in part and remanded, holding that, contrary to the standard applied below, there is no requirement that the new work comment in some way on the earlier work or popular culture for it to be deemed transformative. The categories of fair use listed in 17 U.S.C. Section 107 are illustrative, not exhaustive, and although some types of fair use such as satire and parody do comment on an original work or some aspect of society, many other types of works which constitute fair use, do not. The essence of the inquiry, the Court stated, is whether the artist has created “new information, new aesthetics, new insights and understandings” (quoting Blanch v. Koons, 467 F.3d 244, 253 (2d Cir. 2006)), however that “new” material may be manifested in the new work.

The Court recognized that many alleged infringers take pains at deposition to justify their use as commenting on or critiquing the original work, but the fact that Prince declined to do so was not dispositive, because the test is whether a reasonable person would find the use transformative. The emphasis is therefore on the works themselves, mandating a side-by-side comparison of each of Prince’s works with the Cariou photograph[s] that served as the source.

When viewed under the correct test, the majority of the panel found twenty-five of Prince’s works to be transformative as a matter of law. Prince had testified that he had ignored the meaning of the originals and instead created what he called “a post-apocalyptic screenplay” on the “equality of the sexes,” an aim clearly different from that which had motivated Cariou. In contrast to Cariou’s “serene and deliberately posed portraits and landscape photographs,” Cariou’s works were “crude and jarring . . . hectic and provocative.” Prince had taken Cariou’s small format black and white photographs and created vastly larger works on canvas that incorporated color, collage and distortions. In the Court’s view, these images “have a different character, give Cariou’s photographs a new expression, and employ new aesthetics with creative and communicative results distinct from Cariou’s.”

The Court acknowledged that not every reworking may constitutes a fair use. “For instance, a derivative work that merely presents the same material but in a new form” would not be transformative (quoting Castle Rock Entm’t, Inc. v. Carol Publ’g Grp., Inc., 150 F.3d 132, 143 (2d Cir. 1998)). The majority believed that a further factual record was necessary with respect to the remaining five of Prince’s works (including the work called Graduation which had illustrated almost every article and news report on the dispute), and so remanded to the district court to determine whether they were fair use under the Court’s formulation of the proper standard.

The Court gave little credence to Cariou’s claims of market harm under the fourth fair use factor since the audience and price point for each artist’s work were totally different; likewise, there was no indication that Cariou would prepare derivative works or license others to do so in Prince’s market sphere. The proposed exhibition of Cariou’s work, on which the lower court placed great emphasis, had been canceled because his potential dealer was under the impression that Cariou had collaborated with Prince on his exhibition, not because the market for Cariou’s photographs had been usurped. Finally, the Court offered no guidance to the district court on the appropriate standard to apply on remand to the claims of vicarious and contributory infringement by Gagosian.

The Second Circuit decision has been largely welcomed in the art world. Many believed that the district court holding—that a transformative use required explicit commentary—if upheld, might have crippled the whole field of appropriation art. The issue had already arisen in the wake of two decisions involving the artist Jeff Koons. In the first, Rogers v. Koons, 960 F.2d 301 (2d Cir. 1992), Koons’ fair use parody defense failed in part because he had been unable to articulate how his sculpture was intended to comment on his source, but in Blanch v. Koons, 467 F.3d 244 (2d Cir. 2006), his use of a magazine advertisement photograph in one of his collage paintings was held to be transformative in large part due to his carefully stated deposition testimony on how he intended to comment on the original. In light of these decisions, transformativeness appeared to pivot around a formulaic and, some would argue, cynical exposition of a “motive” to comment on the original work of art or popular culture. By totally refocusing transformative use on a broad suite of aesthetic considerations such as scale, medium, aesthetic impact, and artistic purpose, the Cariou decision better reflects the creative process and permits artists and their dealers to be more confident that significant reworking of visual sources will not give rise to copyright infringement.

Some commentators have expressed discomfort with the Second Circuit making determinations on the transformative nature of individual works of art based on the extent and character of the artistic reworking, and indeed Judge Wallace of the Ninth Circuit, sitting by designation on the panel, dissented as he was less inclined to discount Prince’s own disavowals, and thought that the court on remand was better positioned to make the fair use determination on all of the works, applying the principles set forth in the decision to “such additional testimony as needed.” It is not clear what additional testimony Judge Wallace has in mind, whether it be further testimony from Prince or even expert testimony on the application of a reasonable person standard. Commentators were quick to point out the risk that such a burden, going forward, might chill the very artistic creativity that the majority of the panel seeks to promote.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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