Use of Photograph, Transformed by Artist into Paintings and Collages, is Copyright Fair Use

In Cariou v. Prince et al., 714 F.3d 694 (2nd Cir. 2013) (Available Here), the U.S. Court of Appeals for the Second Circuit found that the Copyright Act does not require that the secondary or derivative use of an original work relate back, in a historical sense, to the original work or that the secondary work critically refer back to the original work in order for the secondary (derivative) work to be transformative.  Once the secondary work is transformative of the original work, the secondary work does not infringe the original author’s copyrights since the secondary work falls with the Copyright Act safe harbor – fair use provisions of the Act.

In 2000, plaintiff Patrick Cariou published Yes Rasta, a book of classical portraits and landscape photographs that he took over the course of six years spent living among Rastafarians in Jamaica. Defendant Richard Prince is a well-known appropriation artist.  Prince’s work, going back to the mid-1970s, involved taking photographs and other images that other original artists produced and incorporating the original art into paintings and collages.  Prince then presents, in a different context, his own paintings and collages which include the original artwork.

Prince altered and incorporated several of Cariou’s Yes Rasta photographs into a series of paintings and collages, called Canal Zone, that Prince exhibited in 2007 and 2008. The portions of Yes Rasta  photographs used, and the amount of each artwork that they constitute, vary significantly from piece to piece.  Cariou sued Prince alleging that the Canal Zone works and exhibition catalog infringed Cariou’s copyrights in the original Yes Rasta photographs.   The District Court granted summary judgment in favor of plaintiff Cariou and entered a permanent injunction against Defendant Prince.

On appeal, Prince contended that the Canal Zone work was transformative and constituted fair use of Cariou’s copyrighted photographs and that the district court imposed an incorrect legal standard.  Prince argued that the trial court incorrectly concluded that, in order to qualify for a copyright fair use defense, Prince’s work must comment on Cariou, or comment on Cariou’s Photos, or comment on aspects of popular culture that is closely associated with Cariou or the Photos.

The Second Circuit found that the Copyright Act imposes no requirement that a work comment on the original artwork or the original author in order to be considered transformative, and a secondary work may constitute a fair use under the Copyright Act even if it serves some purpose other than those (criticism, comment, news reporting, teaching, scholarship, and research) identified in the preamble of the Fair Use provisions of the Act. 17 U.S.C. sec. 107.

The Second Circuit’s observation of Prince’s artworks themselves was convincing of the transformative nature of all but five of Prince’s secondary works. Prince’s composition, presentation, scale, color palette, and media are fundamentally different and new compared to Cariou’s photographs, as is the expressive nature of Prince’s work.  The focus of the Court’s infringement analysis was primarily on the Prince artworks themselves, and the Appeals Court saw twenty-five (25) of Prince’s secondary works as transformative as a matter of law.

In twenty-five (25) of his artworks, Prince did not present the same material as Cariou in a different manner, but instead Prince added something new and presented images with a fundamentally different aesthetic compared to Cariou’s original artwork.

The Second Circuit then went on to analyze the four fair use factors.  (17 U.S.C. sec. 107 factors: (1) The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes; (2) The nature of the copyrighted work; (3) The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and (4) The effect of the use upon the potential market for, or value of, the copyrighted work).

The Court found that although there is no question that Prince’s artworks were commercial in nature, the Court did not place much significance on the fact of commercialization due to the transformative nature of the work.  As for the fourth factor, the Court found that neither Prince nor the Canal Zone show usurped the market for Cariou’s photographs.  As for the nature of the work, the Court found that there was no dispute that Cariou’s work was creative and published, however, just as with the commercial character of Prince’s work, this factor is of limited usefulness where, as here, the creative work of art of Cariou was being used for a transformative purpose.   Prince used key portions of certain of Cariou’s photographs. In doing that, however, the Court determined that in twenty-five (25) of Prince’s artworks, Prince transformed Cariou’s photographs into something new and different and, as a result, this factor weighed heavily in Prince’s favor.  Accordingly, the Court found that all but five (5) of Prince’s artworks made fair use of Cariou’s photographs.

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