The 'Transformation' Of Fair Use After Prince v. Cariou

On November 12, 2013, the U.S. Supreme Court rejected Patrick Cariou's petition for a writ of certiorari, effectively ending his effort to undo the Second Circuit's controversial decision, which largely exonerated from copyright liability artist Richard Prince's Canal Zone works that incorporated Cariou's copyrighted photographs of native Rastafarians. In its April 2013 decision, the Second Circuit rejected the district court's requirement that to be entitled to a copyright "fair use" defense, an allegedly infringing work must comment on, relate to the historical context of, or critically refer back to the copyrighted work.

Finding that the law imposes no such requirement, the Second Circuit held that 25 of Prince's 30 works were entitled to the fair use defense as a matter of law because they were "transformative," while remanding the question of the remaining five works to the district court. What remains open is whether the district court will choose to hear more evidence, or will agree with the Second Circuit's observation that the most crucial evidence needed to determine transformativeness in assessing fair use is the works themselves.

Background

In 2000, photographer Patrick Cariou published Yes Rasta, a book of photographs that he shot while living for six years among Rastafarians in Jamaica. After seeing a copy of the book while in a bookstore in St. Barth's, Richard Prince, a well-known appropriation artist, altered and incorporated several of Cariou's photographs in a series of paintings and collages, which he titled Canal Zone. In 2007 and 2008, Prince exhibited these works through art dealer Larry Gagosian's eponymous gallery, which produced and sold an exhibition catalog containing reproductions of Prince's works featuring the Cariou photographs.

After learning of Prince's exhibition in December 2008, Cariou sued Prince and Gagosian in the District Court for the Southern District of New York, alleging that Prince's Canal Zone works and their Gagosian exhibition catalog infringed on his copyrights in the Yes Rasta photographs. In response, Prince and Gagosian raised a fair use defense.

Fair Use

The fair use doctrine, which is codified in the 1976 Copyright Act, seeks to strike a balance between a copyright owner's property rights in his or her creative works, and the ability of authors, artists, and others to reference those copyrighted works as a means of expression. Under the Act, a court must consider the following four non-exclusive factors in assessing fair use:

The purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes; The nature of the copyrighted work; The amount and substantiality of the portion used in relation to the copyrighted work as a whole; and The effect of the use upon the potential market for the value of the copyrighted work.1 District Court Overwhelmingly Ruled for Cariou

After a review of the relevant fair use factors, the district court found in favor of Cariou, concluding that none of Prince's works constituted fair use. The court based its decision in large part on Prince's deposition testimony in which he failed to show that his work was transformative in the sense of creating new meaning. In particular, the court cited his testimony that he "do[es]n't really have a message," that he was not "trying to create anything with a new meaning or a new message," and that he "do[es]n't have any . . . interest in [Cariou's] original intent."2 That court not only granted Cariou's...