The United States Court of Appeals for the Second Circuit reversed a lower court opinion today in the case of Cariou v. Prince and handed another victory to the perhaps surprisingly robust world of contemporary collage artistry and appropriation art generally. 

Left: Patrick Cariou, Photo from Yes Rasta, p. 118; Right: Richard Prince, Graduation

The story of the case is relatively straight forward.  In 2000, Patrick Cariou published a book titled Yes Rasta of classical portraits and landscape photographs of Rastafarians that he took over the course of six years while living in Jamaica.  Despite its limited print run, well-known appropriation artist Richard Prince happened across a copy in a bookstore on St. Barth’s in 2005 and incorporated several of Cariou’s Yes Rasta photos into a series of paintings and collages, called Canal Zone, that he exhibited first in at the Eden Rock hotel in Saint Barth’s and later at New York’s Gagosian Gallery.  Canal Zone was well received and achieved considerable commercial success.

Cariou sued for copyright infringement in 2008 in New York where the district court rejected Prince’s fair use defense and granted summary judgment to Cariou, ordering the defendant to “deliver up for impounding, destruction, or other disposition, as [Cariou] determines, all infringing copies of the [infringing works].” The district court’s rejection of the fair use defense was based on the erroneous understanding that fair use required that the new work in some way comment on, relate to the historical context of, or critically refer back to the original works – a requirement that Prince admitted his work did not meet.

In reversing the lower court, the Second Circuit observed that although many types of fair use (such as satire and parody) do comment on the original or on popular culture, the law does not require it and that to qualify as a fair use a new work generally need only alter the original with “new expression, meaning, or message.”

The law imposes no requirement that a work comment on the original or its author in order to be considered transformative, and a secondary work may constitute a 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.

Continuing, the appellate court considered “Prince’s crude and jarring works” in contrast with Cariou’s “serene and deliberately composed portraits and landscape photographs,” finding Prince’s composition, presentation, scale, color palette, and media to be fundamentally different and new compared to the photographs. Thus, of the thirty works at issue, the Second Circuit had no trouble finding twenty-five sufficiently transformative so as to qualify for the fair use defense. The remaining five works “present[ed] a closer question[]” in as much as they did not sufficiently differ from the Cariou’s photographs so as to be transformative in nature as a matter of law. These five works were remanded to the district court for further determination as to fair use. Interestingly, the district court’s ultimate determination of these five works in light of the Second Circuits comments on each work will provide an interesting insight for future cases into where and how the line between infringement and transformative fair use is drawn.