Copyright Case Law: Second Circuit Holds Commentary Not Required for Fair Use
In Cariou v. Prince, 11-1197- cv (2d Cir. April 25, 2013), the Second Circuit reversed in part and remanded in part a district court’s determination that artist Richard Prince infringed photographer Patrick Cariou’s copyrights when he used copies of Cariou’s photographs in a series of collages. The Second Circuit held that “the district court imposed an incorrect legal standard when it concluded that, in order to qualify for a fair use defense, Prince’s work must ‘comment on Cariou, on Cariou’s Photos, or on aspects of popular culture closely associated with Cariou or the Photos.'”
Richard Prince is known in the art community as an appropriation artist, which means he takes images from well-known contexts and puts these images into other contexts – think Andy Warhol and his famous Campbell’s Soup Can series. For his Canal Zone series, Prince took 30 photographs from Yes Rasta, Cariou’s photographic book about Rastafarian culture, and added other elements, such as painting gas masks, guitars, oversized hands, and geometrical shapes over the original works. Prince did not seek Cariou’s permission to use the photographs.
Cariou sued Prince for direct copyright infringement, and the art gallery that sold his works and the publisher of the Canal Zone book for vicarious and contributory infringement. The two sides cross-moved for summary judgment, and the district court ruled in favor of Cariou. The district court judge “imposed a requirement that, to qualify for a fair use defense, a secondary use must ‘comment on, relate to the historical context of, or critically refer back to the original works.'” Relying to a large extent on Prince’s refusal at his deposition to conﬁrm any such relation to the original, the district court held that Prince’s Canal Zone was not fair use as a matter of law. The district court granted summary judgment in favor of Cariou and ordered that any unsold Canal Zone works and exhibition books be impounded.
Second Circuit Decision
The Second Circuit vacated the injunctions, ﬁnding that the district court erroneously concluded that in order to qualify as a fair use, a work using copyrighted content must comment on the original work: “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 identiﬁed in the preamble to the [statutory section on fair use] — i.e., (criticism, comment, news reporting, teaching, scholarship and research).
Based on its own examination as a “reasonable observer,” the Court held that all but ﬁve of Prince’s works were not just transformative, but sufﬁciently so to lessen the signiﬁcance of factors that might otherwise have weighed against fair use. The Court noted that Prince’s works “manifest an entirely different aesthetic from Cariou’s photographs.” The Court further noted that what matters is not whether the artist tries “to explain and defend his use as transformative” or even cares about the issue, but instead “how the artworks may ‘reasonably be perceived.'”
The Second Circuit then remanded the case back to the district court to reconsider the remaining ﬁve works under the fair use standard explained in the decision. For these ﬁve works, the Court observed that the images in question “do not sufﬁciently differ from the photographs of Cariou’s” for the Court to rule on them as a matter of law. The district court was asked to consider whether the “minimal alterations” in those works render the uses fair, including a determination of whether they are transformative.
The Court’s analysis in Cariou emphasized the broadness of the fair use doctrine in rejecting the district court’s view that a secondary work must reﬂect or comment on the original. In doing so, the Court focused the analysis on how transformative the secondary work is in relation to the original work. Cariou also gives the Court considerable discretion in deciding what is transformative under the “reasonable observer” test. In the future, we are likely to see courts establish a increasing body of factors to deﬁne the boundaries of what exactly constitutes a “transformative” work.