A somewhat haphazard sampling of reactions to the Second Circuit's recent pro-fair use ruling in Cariou v. Prince

Posted by Charles Colman

Here is a somewhat haphazard sampling of reactions to the Second Circuit's recent decision in Cariou v. Prince (available at Scribd and embedded below.)  If any important, notable, and/or especially insightful commentary has been left out -- as I'm absolutely certain is the case -- feel free to suggest additions by e-mailing me at ccolman (at) lawoffashion (dot) com.


Center for Art Law (Ariel Greenberg): Appropriate Standards in Appropriation Art? Cariou v. Prince Decision Garners Relief but Fails to Provide Substantive Guidance


"... Many in the art world gave sighs of relief when the Second Circuit's ruling came out. Artists, academics, and lawyers believed that [District Court Judge] Batts' decision [in favor of plaintiff Patrick Cariou] would create a chilling effect for creative works. Joshua Schiller, counsel for [defendant Richard] Prince, stated that 'Judge Batts put too much weight on the artist's own characterization of his work, and the artist's ability to articulate what their message is.' This statement is aligned with the opinion articulated by Stanford Law School's 'Center of Internet and Society,' which studies the law and policy of the Internet and other emerging technologies, and had submitted an amicus brief in support of Prince's position. Julie Ahrens stated that 'the [Second Circuit] decision affirms an important tradition in modern art that relies on the appropriation of existing images to create highly expressive works with new meaning.'..."


Hyperallergenic (Cat Weaver): Richard Prince: Back in Black!


"... The ruling is seen by many art/law pundits, art professionals, and artists as an important victory for appropriation art which has seen increasing favor in the courts over the past two decades due to evolving precedents leaning toward a broader interpretation of fair use, based increasingly upon the notion of “transformative use.” With the Batts decision in favor of Cariou, and a previous court decision ruling against the fair use defense in the case of Gaylord v. US: Korean War Veterans Memorial, many art/law theorists were concerned that the courts were backing away from extending fair use practices. The reversal has them all breathing a sigh of relief…."


Art in America (Brian Boucher): Richard Prince Wins Major Victory in Landmark Copyright Suit


"... 'This is a major win for Prince on at least two counts,' NYU art law professor Amy Adler told A.i.A. via e-mail. (She consulted on the case but was speaking for herself.) 'The court decided that artwork does not need to comment on previous work to qualify as fair use, and that Prince's testimony is not the dispositive question in determining whether a work is transformative. Rather the issue is how the work may reasonably be perceived. This is the right standard because it takes into account the underlying public purpose of copyright law, which should not be beholden to statements of individual intent but instead consider the value that all of us gain from the creation of new work.'..."


Law360 (Kim Landsman): Cariou v. Prince Confirms Importance Of Transformativeness


"... The most interesting issue to copyright lawyers will probably be the increasingly talismanic invocation of 'transformative use.' . . . [The Cariou majority] ratchet[s] up the importance of transformative use in the multifactor balancing test [prescribed for 'fair use' determinations by the Copyright Act] by holding that enough transformation can render certain other fair use factors insignificant or alter the way in which they are analyzed. In doing so, it does not make new law, but instead follows a trend . . . . It may well be that no one can come up with a better way to conceptualize fair use, but replacing a vague, unpredictable, multifactor balancing test with the equally vague single standard of transformativeness may not constitute legal progress."


New York Times (Randy Kennedy): Court Rules in Artist's Favor 


"... Daniel Brooks, a lawyer for Mr. Cariou, said that he believed that the decision might only further muddy an already confusing terrain for determining fair use. 'I think that this decision doesn’t offer much guidance or predictability for the future, either to artists or courts that are going to have to deal with these decisions,' he said.  Donn Zaretsky, a lawyer who blogs about art-law cases and has closely followed the Prince case, agreed with Mr. Brooks. 'To me it’s a missed opportunity to really bring some clarity to this issue,' he said. 'How do you decide whether something is transformative or just not quite transformative enough?'..."


The Art Law Blog (Donn Zaretsky, quoting Bob Clarida): What You See Is What You See


"... [O]verall, I think the decision sort of de-conceptualizes the art and treats it as merely a bunch of marks on a surface -- very old-timey and reductionist. If not a jury, you could program a scanner to do it: 88% optically similar is infringement, 38% optically similar is fair use. The five sent back for remand were in the middle. Maybe the court's implicit assumption is that visual differences are key here because both works were 'fine art,' so any asserted difference in purpose is not enough to warrant a fair use finding -- certainly the purpose, context and intent of the five remanded pieces are not much different -- if at all -- from the pieces that qualified for fair use; the only difference is the way they look."


Art Law Report (Nicholas O'Donnell): No Infringement in Cariou v. Prince—Second Circuit Plays Art Critic and Finds Fair Use


"... Given the procedural posture, the court also made some likely unintentional comment on the nature of visual analysis. Under the standard announced, Cariou and Prince might both dispute the facts surrounding the intent of the respective artists—concerning, for example, the target audience. If that is so, summary judgment—a ruling that no facts material to the legal analysis are in dispute—is premature and a contested trial must be held. The Second Circuit undertook to analyze, really without context, only the images themselves. As any student of art history can tell you (and it is ironically often overlooked), untainted visual analysis is essential to finding the meaning of a work, but it is hardly exclusive...."


Clancco (Sergio Sarmiento): Judicial Activism and the Return of Modernism in the Cariou v. Prince Decision


"... How two intelligent minds could draft such an epic disaster is beyond any form of comprehension. One would hope that after eleven months of deliberation and critical analysis we would have been given something more than 23 pages of judicial poetry.... Put simply, I am numb. I am speechless as to what this says about judicial review, and I am disheartened about what this will promote in cultural production.... I am not against appropriation practices. I am, however, on par with [deceased artist Mike] Kelley in simply asking that the act of appropriation — like the act of judicial writing — be accompanied by some thought process...."



Cariou v. Prince, 11-1197 (2d Cir. Apr. 25, 2013)


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