Fair Use Revisited – What’s Transformative?

Last month, photographer Peter Cariou petitioned the Supreme Court to overturn the Second Circuit ruling in Cariou v. Prince, 714 F.3d 694 (2d Cir. 2013), a copyright infringement case, in which the Second Circuit held that twenty five artworks created by the appropriation artist Richard Prince-which incorporated Cariou's original photographs-were fair use and non-infringing.

At center in this case is the tension between appropriation art, which is based on the idea of taking original works of others and creating different works with a new meaning and esthetics, and the rights of copyright owners of the appropriated works.

Whether or not a piece of appropriation art qualifies as fair use often depends on whether the appropriation art work is found to be transformative. As initially developed by Judge Pierre Leval in an article Toward the Fair Use Standard, 103 Harv. L. Rev. 1105 (1990), and subsequently adopted by the Supreme Court in Campbell v. Acuff-Rose Music, 510 US 569 (1994), the secondary work is transformative when it adds value to the original material and employs it in a different manner or for a different purpose, including commenting on or criticizing the original work or its author.

Under this standard and until the Second Circuit's decision in Cariou, which is subject to the current petition to the Supreme Court, secondary use was found transformative and non-infringing where, for example, the original advertisement in a fashion magazine was utilized to criticize the consumer culture represented by the original image, Blanch v. Koons, 467 F.3d 244 (2d Cir. 2006), and denied where a trivia quiz book was based on the television show because the book served the same entertainment purpose as the show. Castle Rock Entm't, Inc. v. Carol Pub. Group, Inc., 150 F.3d 132 (2d Cir. 1998). When analyzing fair use, courts typically inquired into the creative intent of the artist and his purpose for utilizing the original work to determine whether the message of the original work has been sufficiently transformed into a new idea.

The district court decision in Cariou v. Prince , 784 F. Supp. 2d 337 (S.D.N.Y. 2013) reflects the above approach. Patrick Cariou created a series of photographs of Rastafarians in Jamaica that comprised a book published in 2000 under the title Yes, Rasta. Prince, a successful appropriation artist, whose works are part of a permanent collection of several museums, came across Cariou's book and used a dozen of...