Post for 5/1

A huge appeals court ruling came down Thursday morning in the most famous artist-on-artist copyright lawsuit in recent years, pitting well-known American painter Richard Prince against a lesser-known photographer Patrick Cariou. Notice the use of the word "transformative" and how open to interpretation that standard is. (*Click on links within the story for background on the case)

NOTE: Remember to bring your projects since midterm to class Wednesday. Additionally, please bring your Terry Winters computer ink drawings and ink drawings (they have already been graded but I need to photograph them for my records).

Appeals Court Ruling Favors Richard Prince in Copyright Case

By RANDY KENNEDY

Published: April 25, 2013

The United States Court of Appeals for the Second Circuit has decided largely in favor of the artist Richard Prince in a closely watched copyright case, which has broad implications for the contemporary art world. Mr. Prince was found by a federal court in 2011 to have violated copyright law by using photographs from a book about Rastafarians to create a series of collages and paintings.

 

The original decision, by Judge Deborah A. Batts, found in favor of Patrick Cariou, whose book “Yes Rasta,” featuring portraits he took during several months in Jamaica, was published in 2000. Mr. Prince used dozens of the pictures as the basis for a series of works that he called “Canal Zone,” which were exhibited at the Gagosian Gallery in 2008 and which generated more than $10 million in sales.

Mr. Prince argued that his use of the photographs should be allowed under fair-use exemptions to copyright protections, which permit limited borrowing of protected material for purposes like commentary, criticism, news reporting and scholarship. But Judge Batts wrote that for fair-use exceptions to apply, a new work of art must be transformative in the sense that it must “in some way comment on, relate to the historical context of, or critically refer back to the original work” it borrows from. That reading of the law was viewed as unusual by many copyright experts, galleries and leading art museums, who warned that it could have a chilling effect on art that relies on appropriation, a controversial but longstanding postmodern artistic strategy.

The Appeals Court, which heard the case last year, ruled on Thursday that Judge Batts’s interpretation was incorrect and that “the law does not require that a secondary use comment on the original artist or work, or popular culture” but only that a reasonable observer would find the work to be transformative.

Using that standard, the court found that 25 of 30 works by Mr. Prince under consideration in the case were permissible under fair use because they “have a different character” from Mr. Cariou’s work, give it a “new expression” and employ “new aesthetics with creative and communicative results distinct” from the work that Mr. Prince borrowed. Five other works, the court said, were so minimally altered by Mr. Prince that they might not be considered fair use by a reasonable observer, and they were sent back to the lower court for a determination using the standard set out by the appeals court.

Lawyers for Mr. Prince and Mr. Cariou were not immediately available to comment on the decision.

Link to original story