Prince Vs Cariou Case Study

Prince v. Cariou Brief A. Statement of the Case Plaintiff Patrick Cariou sought summary judgement on the issue of liability of copyright infringement. Defendants Richard Prince, Gagosian Gallter, Inc., and Lawurence Gagosian sought a determination that their use of Plaintiff’s copyrighted photographs was a “fair use” under the relevant section of the Copyright Act, 17 U.S.C. §§ 107 (1)-(4), and that the Plaintiff’s claim for conspiracy to violate his rights under the Copyright Act is barred by law. The Second Circuit Court found (1) that Defendants' infringing use of Plaintiff's copyrighted photographs was not fair use under the Copyright Act; and (2) that Plaintiff's conspiracy claim is barred by law. Accordingly, Defendants'
Motion was granted in part, and Plaintiff's Motion was granted in its entirety. Facts & History Patrick Cariou works as a professional photographer and spent around six years living alongside the Rastafarians in Jamaica, learing about them, photographing them, taking portraits and gaining their trust.
He then published a book of pictures of his time in Jamaica and titled it “Yes, Rasta”. The book primarily consisted of his poritraits of the Rastafarians and various scenic pictures of the country’s geography. Cariou testified that he had used unique techniques for his pictures and that his artful use of staging techniques and ideas made the pictures his signature work. Hence, Cariou is the sole copyright holder of the all the images in Yes, Rasta. The Defendant Richard Prince, on the other hand, is a well known “appropriation artist”, and has shown his works at the Guggenheim in New York City, and other famous museums and
galleries.
Prince used 35 photographs from Cariou’s book Yes, Rasta for a project called Canal Zone where he painted over Cariou’s pictures and created new pieces by attaching them on a wooden backer board. From December 2007 to February 2008, Prince showed those pictures as a part of the exhibition where he also showed other works. Although Prince didn't sell Canal Zone at that time, he did sell other works from that exhibit. Prince did however, express his intent to use Canal Zone's characters in a screenplay and other artwork also to be called Canal Zone. He also finished 29 paintings out of which 28 were taken from Yes, Rasta. Some of them were altered to into collages, were edited, cropped but none of them had any critical or stark changes in them compared to the original paintings. At that point, Cariou had never even shown his work to anyone or sold it to anyone, other than close friends in a private sale. He had only licensed his images to be used in the Yes, Rasta book. Moreover, he was in conversatoon with a gallery owner Christiane Celle, who was interested and had planned to show his works in her Manhattan gallery and sell prints of it as well. Celle was going to show 30-40 of his pictures at her gallery and was planning to sell prints for a price range of 3,000 to 20,000 dollars. However when she became aware of the Canal Zone exhibit by Prince, she cancelled her show. She said that she knew that Prince was a famous artist and had garnered a lot of publicity for his work due to the fact that he had celebrity clients and had several high profile exhibits before. And as such she didn't want to show the work Prince already showed in his gallery, as she didn't want to use his publicity and notoriety for her gain.

A. Defendant’s Works Were Commercial and Were Not Transformative The first statutory factor that courts consider in evaluating use is, “The purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes.” This statutory language was meant to allow certain types of use for the public good, to foster debate and progress. However, it is not meant to commandeer the rights of the author; rather, fair use is meant to reconcile the two interests, to allow certain uses that an author would likely agree to. The Second Circuit wrongfully determined that 25 of the works were considered transformative, holding that any use of a work which adds new meaning to the original will qualify as fair use, regardless of its purpose. In Castle Rock Entertainment, Inc. v. Carol Publishing Group, Inc. 150 F. 3d (2d. Cir. 1998), the Defendant prepared a trivia book based on the popular TV show, Seinfeld. She watched all the episodes, collecting facts and information for the project. Though Defendant claimed that the work was intended to entertain the readers and expose the culture of Seinfeld, the episodes were repackaged and viewed as a money grab. When the nature of the work is commercial, courts generally tend to find against fair use. Comparatively, Prince’s appropriations were sold to high-end clients and he reaped in over $10 million in profit. He had a gallery show in the hopes that people would buy his work. Also, a substantial portion of the work was taken from the shows. Though there were incorrect multiple choices, in the end, the work was not considered transformative. In at least some of the pictures, Prince’s contributions may also be considered so de minimis that they should not be considered transformative. For example, in the picture Graduation, Prince added a couple of fixtures, but when looking at the two pictures side by side, there is not that much difference. To be able to profit off such minimal changes, to be able to steal the heart of Cariou’s art (the portrayal of these individuals) is quite inequitable for artists.

B. The Nature of the Copyrighted Work is of a Kind That Should Be Protected The second factor that courts consider is, “The nature of the copyrighted work.” Courts usually examine at whether the work is creative or factual.
A creative work weighs in favor of the copyright holder, whereas a factually based work is afforded more leniency. Photographs are these strange amalgamations of fact and fiction, art and the historical. Cariou documented the microcosmic world of the Rastafarians, capturing a piece of history and culture. However, he did so in an artistic way, choosing his subjects, playing with light and color, choosing different angles. The Second Circuit found that although the works were creative and published, this fact did not have much bearing on the court’s analysis when a creative work is used for a transformative purpose. The Court glossed over this factor; however, this is critical because of the spectrum of protection that works get based on their nature. With factual, historical, or scholarly works, individuals are afforded more freedom to use such works than in fictional or artistic
works.
Cariou’s works should largely be considered works of art, and therefore be afforded more protection than just everyday facts. In Bill Graham Archives v. Dorling Kindersley, Ltd., 448 F.3d 605 (2006), the Defendant published a book about the history of the Grateful Dead. The book contained seven copyrighted images that were of a promotional and artistic value. The Court here found that the use of the posters in the book was transformative. It was a transformative use because it completely changed the nature of the copyrighted work. Instead of a promotional or artistic work, it was meant to be one of the Grateful Dead artifacts. However, for Cariou, his works were not used for such a case.
C. Defendant Copied Substantial Amounts from Plaintiff’s Copyrighted Works
In applying the third statutory factor of fair use to Prince’s artwork, the court erred in ruling that Prince’s artworks make fair use of Cariou’s photographs. The third statutory factor in determining fair use of a copyrighted work is laid out in section 107 of the copyright Act. It states that….”In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include…the amount and substantiality of the portion used in relation to the copyrighted work as a whole.” 17 U.S.C. §107(3). In analyzing this factor, the courts ask, whether the quantity and value of the materials used are reasonable in relation to the purpose of the copying. See Black, 467 F.3d at 257. In addition, the Supreme Court held in Campbell, that the inquiry must focus upon whether the extent…of copying is consistent with or more than necessary to further the purpose and character of the use.” Campbell v. Acuff-Rose Music, Inc. 510 U.S. at 586-587.
In the case at hand, the Court considered not only the quantity of the materials taken but also, “their quality and importance” to the original work and determined that by Prince only using portions of Cariou’s photographs and transforming those into something new and different, this factor weighed in Prince’s favor and his defense of fair use was allowed. The court erred, in coming to this conclusion and incorrectly interpreted case law. Although Prince, transformed Cariou’s photographs, the essence of Cariou’s original work was still there and were recognizable. This is evident based on the fact that Celle had recognized Cariou’s work at Prince’s show. In believing that a collaboration was done shows that Prince had in fact taken a substantial amount of Cariou’s copyrighted works. As a result, Prince cannot claim a fair use defense as more of Cariou’s artwork was taken than necessary to fulfill his goal in creating appropriation art.
D. Defendant’s Unauthorized Copying and Selling Adversely Affected Plaintiff’s Markets. In applying the fourth statutory factor for fair use to Prince’s artwork, the court erred in ruling that Prince’s artwork makes fair use of Cariou’s photographs. The fourth statutory factor in determining fair use of a copyrighted work, is “the effect of the use upon the potential market for or value of the copyrighted work.” 17 U.S.C. §107(4).
As the court noted in Harper, “fair use when properly applied, is limited to copying by others which does not materially impair the marketability of the work which is copied.” See, Harper & Row, Publishers, Inc. v. Nation Enterprises, 471 U.S. 539 (1985) (citing) 1 Nimmer §1.10[D] at 1-87. Harper held that the loss incurred by Time magazine’s cancellation was enough to show that Harper endured loss of marketability of their work. That case is parallel to the case at hand, as Cariou endured one loss as a result of Celle not wanting to exhibit Cariou’s work after seeing it mixed in with Prince’s appropriation work. The Court erred in determining that due to Celle being mistaken that collaboration was done between the parties’ means that the market was not impaired. This is a mistaken interpretation of the facts and due to Celle believing that collaboration was done reveals the potential of other individuals who could have also been mistaken and failed to offer Cariou his own exhibition. In addition, since Cariou’s work was not vastly famous, the loss of his own exhibition from Celle would be enough to materially impair the marketability of his work, since his work is focused on only a small, particular market. Therefore, due to the loss of marketability Cariou endured as a result of Prince’s use of his copyrighted work, Prince cannot claim a fair use defense and the court erred in granting him the defense.