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Fair Use Ruling: Artist Sufficiently Transformed 25 of 30 Photos

On Thursday, the Second Circuit Court of Appeals overturned a trial court’s decision, ruling that an artist’s uses of 25 copyrighted photographs were sufficiently transformative to be protected by copyright’s fair use defense. The court was uncertain, however, whether the artist’s uses of five other photographs should be considered adequately transformative to trigger the defense. The court’s opinion, Cariou v. Prince, is available here.

The artist, Richard Prince, had copied the work of photographer Patrick Cariou, who had taken the photographs over a six-year period in Jamaica. Cariou had  published the collection in a book, “Yes Rasta,” in 2000.

Prince used 30 photos from Cariou’s book in creating “Canal Zone,” a series of large-scale works exhibited at galleries in St. Barth’s and New York City in 2007 and 2008. Prince’s modifications to the black-and-white photos varied, but included enlarging the images, adding acrylic paint, pasting on new elements, tinting them, and using them in collages. According to the court, some of Prince’s works exhibited at the galleries almost entirely obscure Cariou’s original photographs. In others, Cariou’s original images are still readily apparent.

The court found that 25 of Prince’s works “manifest an entirely different aesthetic from Cariou’s photographs”:

Where Cariou’s serene and deliberately composed portraits and landscape photographs depict the natural beauty of Rastafarians and their surrounding environs, Prince’s crude and jarring works, on the other hand, are hectic and provocative. Cariou’s black-and-white photographs were printed in a 9 1/2″ x 12″ book. Prince has created collages on canvas that incorporate color, feature distorted human and other forms and settings, and measure between ten and nearly a hundred times the size of the photographs.

The court cautioned, however, that not all “cosmetic changes to the photographs would necessarily constitute fair use. A secondary work may modify the original without being transformative.” As an example, the court cited its 1998 ruling that a book providing synopses of Seinfeld television episodes infringed the original shows’ copyrights, since the book simply repackaged the episodes’ content in a new form.

The appellate court was uncertain whether Prince’s modifications were merely cosmetic for five of the thirty works.  The court remanded the case to the trial court to determine whether those “relatively minimal alterations” were sufficiently transformative to be deemed fair uses of Cariou’s photographs.