Wednesday, 17 July 2013

Will Cariou v. Prince case be heard by the US Supreme Court?

On the left, a photograph of a Rastafarian taken from Patrick Cariou's "Yes Rasta" (2000); on the right, Richard Prince's work "Graduation" (2008)

We have extensively talked on this blog about Cariou v. Prince case.

The photographer Patrick Cariou won in 2008 a lawsuit for copyright infringement against the appropriation artist Richard Prince, who had used Cariou's photographs of Jamaican Rastafarians in his appropriation artworks.

Such decision was largely reversed in appeal last April, where it was ruled that 25 of 30 paintings from Prince's "Canal Zone" were sufficiently different from Cariou's ones to be qualified as fair use, as we reported here.

Last May, Cariou asked the Second Circuit of Appeal to reconsider the case, claiming that the ruling contradicted the earlier decisions by the same court, not providing any certainty on how to qualify fair use. But the Second Circuit denied his request on June 10.

Therefore, Patrick Cariou’s lawyer recently announced the photographer will file appeal with the Supreme Court within three months, i.e. within 90 days from the Second Circuit's refusal to rehear the case.

Assuming that Cariou will file the Appeal, then the Supreme Court will not necessarily agree to hear it. Indeed, though the Supreme Court receives thousands of requests per year, it agrees to decide on a small percentage (e.g. in 2010 it was only 1%).

Anyhow, a pronunciation from the US Supreme Court could be useful to provide clarity on what can constitute fair use. Indeed, the Second Circuit's decision was largely criticized for not offering sufficient criteria for applying fair use defense in appropriation art cases.


Anonymous said...

According to that, in America there is no longer need to seek Museums or even IT ensigns permission to use copyrighted work. You can copy paste as you like. This is really good news for anyone who wish to copy paste IT.

Anonymous said...

Violation of Artist Human Rights convention :

1 Prince’s work appeals to an entirely different sort of collector than Cariou’s. Certain of
2 the Canal Zone artworks have sold for two million or more dollars. The invitation list for a
3 dinner that Gagosian hosted in conjunction with the opening of the Canal Zone show included a
4 number of the wealthy and famous such as the musicians Jay-Z and Beyonce Knowles, artists
5 Damien Hirst and Jeff Koons, professional football player Tom Brady, model Gisele Bundchen,
6 Vanity Fair editor Graydon Carter, Vogue editor Anna Wintour, authors Jonathan Franzen and
7 Candace Bushnell, and actors Robert DeNiro, Angelina Jolie, and Brad Pitt. Prince sold eight
8 artworks for a total of $10,480,000, and exchanged seven others for works by painter Larry
9 Rivers and by sculptor Richard Serra. Cariou on the other hand has not actively marketed his
10 work or sold work for significant sums, and nothing in the record suggests that anyone will not
11 now purchase Cariou’s work, or derivative non-transformative works (whether Cariou’s own or
12 licensed by him) as a result of the market space that Prince’s work has taken up. This fair use
13 factor therefore weighs in Prince’s favor.