Artist Richard Prince Didn’t Infringe Photo Copyrights

By Nate Raymond | April 26, 2013

In a closely watched case in the art world, American artist Richard Prince won a federal appeals court order Thursday holding that he did not infringe the copyrights of a photographer by incorporating his images into 25 paintings and collages.

The 2nd U.S. Circuit Court of Appeals in New York reversed a lower court’s finding that Prince must hand over artwork using the photos to Patrick Cariou, whose pictures of Rastafarians in Jamaica were incorporated into art, exhibited in 2007 and 2008.

“These twenty-five of Prince’s artworks manifest an entirely different aesthetic from Cariou’s photographs,” U.S. Circuit Judge Barrington Parker wrote.

The court battle has been considered a test to what extent the appropriation of artists’ works is protected from claims of copyright infringement.

The appeal drew friend-of-the-court briefs from a wide range of parties, from the Whitney Museum of American Art to Google Inc, which warned the lower court’s ruling deviated from standard copyright analysis in “dangerous” ways.

The ruling is a “huge win for Richard Prince and an entire genre of modern art,” said Anthony Falzone, a lawyer for The Andy Warhol Foundation for the Visual Arts, which filed a brief backing Prince.

“It recognizes the broad range of meaning that artists create by incorporating existing images into their work,” he said.

Prince is a prominent appropriation artist and photographer whose works have appeared in New York’s Guggenheim Museum and the San Francisco Museum of Modern Art.

Joshua Schiller, a lawyer for Prince at Boies, Schiller & Flexner, said his client was pleased with Thursday’s ruling.

Cariou sued Price and the Gagosian Gallery in December 2008 after learning about a show held at the gallery featuring 22 works from a series Prince titled Canal Zone. Thirty of the pieces Prince created for the series incorporated all or part of photos by Cariou that appeared in a 2000 book, “Yes Rasta.”

Some of Prince’s works sold for more than $2 million. He sold eight for $10.5 million and traded seven others for works by painter Larry Rivers and sculptor Richard Serra, according to the appeals court decision.

Prince argued that his use of the photographs was protected under the theory of fair use, saying his work was “transformative.”

Thursday’s ruling reverses an order by U.S. District Court Deborah Batts in Manhattan, who had concluded that Prince was not protected from liability because his paintings did not “comment on” or critically refer back to the original works.

Daniel Brooks, a lawyer for Cariou at Schnader Harrison Segal & Lewis, said he believed the court got the law wrong “in a number of ways,” and said he was considering his options.

He said the ruling does not provide any guidance for future cases to figure out if an artist violates copyright laws through appropriation.

“It just seems somewhat subjective,” he said.

The appeals court sent the dispute over five of Prince’s works back to the trial court to determine whether some alterations were enough to avoid a finding of infringement.

Hollis Gonerka Bart, a lawyer for the Gagosian Gallery and owner Larry Gagosian, said the case will now likely proceed as a trial on the five remaining works. Her client intends to “defend vigorously” itself, she said.

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