Fair Use Project Teams Up With Andy Warhol Foundation To Urge Second Circuit To Provide Broader Fair Use Protection For Artists

Last March, a Manhattan district court issued an order declaring thirty paintings by the renowned artist Richard Prince unlawful, and issued an injunction that led to the seizure and potential destruction of his work. It did so because Prince’s paintings used images of Rastafarians that Prince found in Patrick Cariou’s book, Yes, Rasta. Yesterday, we filed an amicus brief on behalf of The Andy Warhol Foundation for the Visual Arts urging the Second Circuit to reverse that decision. (The Warhol Foundation's press release is here.)

For more than a century, artists like Picasso, Duchamp, Rauschenberg, and Warhol have taken images they found in the world around them, and incorporated those images into their art. These artists and countless others have created an important canon of modern art that relies on the appropriation of existing images to create highly expressive works with powerful new meaning. The district court’s decision threatens this tradition and the important artistic expression it embodies. In finding that Prince infringed Cariou’s copyrights, the court ignored established fair use principles and assumed the only legitimate reason for an artist to use existing images is to parody them or comment directly upon them. It ignored the vast array of new meaning artists create through the use of existing images using collage and other techniques, and the fact that meaning may not be readily apparent to all, or even to the artist himself. The court compounded these errors by issuing an injunction without weighing any of the free speech and expression interests at stake. The fair use doctrine is the most important tool we have to make sure copyright does not choke off the creativity it is supposed to foster, and it was misapplied here. While we hope the Second Circuit corrects that error, we also hope it takes this opportunity to clarify and strengthen the protection fair use must provide for expressive uses like this one.

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