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Richard Prince, Gagosian and Rizzoli lose copyright lawsuit in Prince's "Canal Zone" appropriation

Patrick Cariou wins copyright case against Richard Prince and Gagosian. Judge orders that all infringing copies of Cariou’s Rastafarian photos be impounded and destroyed

from The Art Newspaper:

By Charlotte Burns | Web only
Published online 21 Mar 2011.

New York. A US District judge has ruled in favor of photographer Patrick Cariou in his copyright lawsuit against artist Richard Prince.

Cariou originally filed suit for copyright infringement against Prince, Larry Gagosian, Gagosian Gallery, and Rizzoli books in December 2008 after a number of his photographs were re-appropriated without consent in Prince’s Canal Zone series. The photographs first appeared in Cariou’s 2000 publication, Yes, Rasta, a photographic book produced after spending six years documenting Jamaican Rastafarians.

Prince “admits to using at least 41 photos from Yes, Rasta", according to the judge’s decision, but had claimed “fair-use” for transforming the original works, as opposed to creating derivative images.

US District Judge Deborah Batts has granted Cariou’s motion for summary judgment on the issue of copyright infringement and ordered the defendants to “deliver up for impounding, destruction, or other disposition, as Plaintiff determines, all infringing copies of the photographs, including the paintings and unsold copies of the Canal Zone exhibition book, in their possession, custody, or control and all transparencies, plates, masters, tapes, films, negatives, discs and other articles for making infringing copies.”

The defendants must also notify in writing any current or future owners of the paintings to inform them that the works infringe Cariou’s copyright, and “were not lawfully made under the Copyright Act of 1976, and that the paintings cannot be lawfully displayed”.

At its heart, the case focuses on Prince and Gagosian’s “fair use” defense. This legal doctrine is intended to mediate between the First Amendment and the Copyright Clause, which are “intuitively in conflict”, according to the judge’s decision. Four factors determine fair use.

Firstly, “the purpose and character of the use,” i.e. the extent to which the new work is transformative. However, rather than adding value solely through transforming elements of the original, the new work must comment on the original in some way, and create something “plainly different from the original purposes for which it was created”, according to the judge’s decision, which refers to the landmark copyright case of Rogers versus Koons: “If the infringement of copyrightable expression could be justified as fair use solely on the basis of the infringer’s claim to a higher or different artistic use...there would be no practicable boundary to the fair use defense.” In the earlier case, Koons failed to prove that his “parody” of an image of a couple surrounded by puppies, by commercial photographer Art Rogers, constituted fair use.

After noting Prince’s testimony that “he didn’t really have a message” and did not attempt to comment on any aspects of the original, the judge ruled that “there is vanishingly little, if any, transformative element.”

The less transformative a work, the more important its commerciality becomes. The papers quote Gagosian’s sales figures to determine that the “defendants use and exploitation of the photos...was substantially commercial...[which] weighs against fair use”. Gagosian had sold eight of the Canal Zone paintings for a total $10.48m, 60% of which went to Prince, with the remainder to the gallery. Seven other paintings were exchanged for art “with an estimated value between $6m and $8m,” according to court papers. Gagosian gallery also sold $6,784 worth of exhibition catalogues.

“Bad faith” is also taken into consideration. Despite instructing an assistant to contact Cariou’s publisher to buy extra copies of Yes, Rasta, Prince never asked “about licensing or otherwise sought permission to use” the images. “Prince’s bad faith is evident,” ruled Judge Deborah Batts.

The second element is the “nature of the copyrighted work”. The defendants had questioned Cariou’s copyright of the images, asserting that his “photos are mere compilations of facts...arranged with minimum creativity.” The judge ruled against this: “Unfortunately for defendants, it has been a matter of settled law for well over 100 years that creative photographs are worthy of copyright protection,” found the judge.

The third issue taken into consideration in the fair use defense is the “amount and substantiality of the portion of the copyrighted work used”. The judge found that, by appropriating the central figures in Cariou’s publication, Prince had gone “to the very heart of his work. Accordingly, the amount of Prince’s taking was substantially greater than necessary, given the slight transformative value of his secondary use...[which] weighs heavily against...fair use.”

The final deciding factor is the extent to which Cariou’s real and potential markets had been harmed by Prince’s appropriation. The defendants’ claims that “Cariou has not marketed his photos more aggressively (or, indeed, as aggressively as Prince has marketed his paintings) are unavailing,” found Judge Batts, who said that Cariou’s potential market had been “usurped”. Cariou’s real market was also effected after Manhattan gallerist Christiane Celle cancelled a scheduled exhibition of prints from Yes, Rasta because she did “not want to be seen to be capitalizing on Prince’s success and notoriety...and did not want to exhibit works which had been ‘done already’ at another gallery”, according to the papers.

The “Gagosian defendants” were also found “directly liable for copyright infringement” by distributing images of and selling paintings from Canal Zone. In addition, all Gagosian defendants were found as “vicarious and contributory infringers” after the judge ruled the they had “at the very least the right and ability (and perhaps even responsibility) to ensure Prince obtained licenses”. She added: “The financial benefit of the infringing use to the Gagosian defendants is self-evident.”

Cariou had also claimed for conspiracy under the Copyright Act, which was dismissed.

In an emailed statement, a Gagosian spokeswoman said: “Gagosian Gallery declines to comment on the Court’s decision at this juncture. Gagosian remains committed to the promotion of the arts through its continued support of artistic freedom in the studio for appropriation artists, such as Richard Prince, the creator of the Canal Zone series.” It is not known whether the gallery or Prince will appeal the decision.

All parties are due to appear in court on 6 May for a status conference to settle damages and fees.

Cariou's original photo vs. Prince's collaged and painted appropriation

Full text of the March 18, 2011 decision here.


Charlie Finch comments on Artnet:

...anyone who knows Prince’s work knows that minimal yet overall appropriation in the service of bad faith is what his work and career are all about, yet the judge rejected this meta kind of appropriation, ruling that it did not fall within the definition of fair use. Indeed, Judge Batts implied a kind of slippery slope by observing that Prince had not cut up or sectioned Cariou’s pictures sufficiently...

...having a judge as an interpreter of the meaning of art remains Kafkaesque: we can trot out the entire oeuvre of Andy Warhol, Robert Rauschenberg and a thousand other artists as violators of Judge Batts’ standard. But what of photographer Cariou? Is he not an artist, as well? There is undeniable schadenfreude in seeing Prince suffer, notably when his “Canal Zone” show was one of his laziest (but wasn’t that the point?) and a best seller at high retail price points. Indeed, Judge Batts decreed that, absent a stay for an appeal from the defendants, Prince’s work from the series and the tools used to make it should be obliterated in some way in the next 10 days, with those paintings already sold forbidden from being (literally) hung on the walls. Presumably, Cariou will have to go after their owners specifically...


My short postscript:

Judge Deborah A. Batts attended Radcliffe College and Harvard Law School, and was on the law faculty of Fordham University before her appointment to the U.S. District Court for the Southern District of New York in 1994. She is the only openly gay member of the federal judiciary, and is no stranger to bold, sweeping or controversial decisions that tend to favor the underdog. In 2006 she ruled against former Environmental Protection Agency administrator Christine Todd Whitman, alleging that Whitman misled people near the World Trade Center site regarding the risks of toxic air pollution after the September 11, 2001 attacks. And in 2009 she ordered an injunction to stop an unauthorized "sequel" to Catcher in the Rye from going to press.

Here is the judge attending a dedication of her portrait at Harvard Law School - a portrait that Richard Prince, presumably, will never attempt to appropriate.

French Photographer Patrick Cariou On His Copyright Suit Victory


Where do things stand with the proceedings today?

There is an expression in Jamaica, "pressure drop," and the pressure drop that the judge made was to send the letters to Prince and Gagosian. Now what happens depends on whether they care about their reputations or not. It's also extremely costly. One can expect that 99 percent of the people want to return the paintings and get their money back, so that's $10 million right there. And they only have seven days left.

What do you think their options are to fight the ruling?

They have one option that they can try to go back to the judge to ask for 20 days more, but basically we don't care. But we will still fight that. The other option is to negotiate. Basically, this whole thing shouldn't have gotten this far. I don't know why they took the risk, whether it's pure arrogance or not, but I don't know why they went this far. Now they're obviously in a bad situation to start the negotiation.

Since the judge has ordered that all of Prince's paintings and other materials relating to "Canal Zone" be handed over to you, what do you plan to do with them?

It not clear right now what I am allowed to do with it — we have been asked to check that with the judge. I don't want to talk too much about that. I can destroy them if I want to, but that's also an extremely drastic decision to make. Destroying art if you don't like it, that's something you have to think extremely deeply about. We'll see. What I wish I could do is get some money from them and open a foundation in Jamaica for Rasta kids in the West End near Negril, a school probably and a restaurant for them where they could hang out together. There are also lot of people who need attention in Jamaica, it's a very poor country so there are many options.

How will you pay for it?

If I could sell those paintings for good money… I'm not really sure what the art world is going to think about that. On the one hand, people could say, "That's a piece of shit, I don't want that." On the other hand, they could see them as important to art history. But the decision was only made on Friday, and we're not sure how far the judge would go. From Friday, all of those paintings are unlawful, so I would have to be given the right to sell them. And this is not done yet, it could be finished this week or it could last a year or two again. It's on them now.

Do you have any plans to show your "Yes, Rasta" photos now?

I might, but I won't do it right away to try to capitalize on the noise that's going to be made in the next two weeks. I'm just going to sit on it. I'm not looking for instant recognition in my work. I'm trying to make my work and be as good as I can be, and then let it grow into what it's going to become.

What do you think the impact of this decision will be on the art world?

In my opinion copyright law is badly done, because there is one word in that law that makes everyone really confused, and that word is "transformative." It took me over a year to understand what that meant, it was explained to me and I didn't get it, and I don't think I'm but I didn't get it. It has to be transformed for a purpose, that's what it is, and that's what the judge is saying, and it's going to bring some sanity into the appropriation world. You can comment on the original work, or you don't copy it, or you get a license — it's a really simple thing. I was in the room when Prince and Gagosian were deposed and they have an overwhelming sense of power. They think that they're untouchable. Prince got away with it for 20 years, and when he got into the courtroom he was like, "What am I doing here?" What [using my work] was, at the end of the day, was a quick fix where Gagosian could make a few million and then move on to something else. And we're not talking about using one or two pictures, were talking about 41 pictures. At least go and pick up other books about reggae, you know?

Appropriation has become an art strategy used by people like Richard Prince and Jeff Koons, but also young artists who have adopted it to make their work. Do you see this ruling as having any negative effect on artists?

It's going to educate them. I don't think it's going to harm anyone. I don't think artists should be offered a different standard from anyone else. When you're 12 years old your parents tell you "Don't steal the candy," and we all try to apply that rule, and if you don't people sometimes end up in jail. I'm interested in Warhol's use of the Campbell soup can and Rauschenberg using readymade things — that I'm okay with. If it's to steal photographs or paintings to create something, you shouldn't be an artist in the first place. To me Richard Prince is more of an art director than an artist. I think he's a good art director, and a great thief.