Today the Second Circuit Court of Appeals issued a long-awaited decision in favor of fair use in Cariou v. Prince. Reversing the district court’s finding of infringement, the Court held that Richard Prince’s use of Patrick Cariou’s photographs in 25 of his 30 Canal Series paintings was a fair use. The decision affirms an important tradition in modern art that relies on the appropriation of existing images to create highly expressive works with new meaning.The decision confirms the principle that a use can be fair even if it doesn’t criticize or comment on the original work. While it it’s far from groundbreaking to say that commentary or criticism isn’t necessary for fair use, it is a principle that hasn’t been applied before in the visual art context. Here the Court held that copyrighted images can be used as raw material to create new works of art, even where the artist had nothing to say about the images he relied upon. Transformation can be found where the artist’s expression and “composition, presentation, scale, color palette, and media are fundamentally different and new compared to the photographs.” Equally significant was the Court’s holding that an artist’s statement regarding his purpose for using the work is not the sina qua non of determining whether a work is transformative. The Court agreed with the analysis we set out in our amicus brief and held:
“What is critical is how the work in question appears to the reasonable observer, not simply what an artist might say about a particular piece or body of work. Prince’s work could be transformative even without commenting on Cariou’s work or on culture, and even without Prince’s stated intention to do so. Rather than confining our inquiry to Prince’s explanations of his artworks, we instead examine how the artworks may ‘reasonably be perceived’ in order to assess their transformative nature.”
The Court also vacated the district court’s permanent injunction, which gave Cariou the option to destroy, sell or dispose of any of Prince’s infringing works that had not yet been sold. The Second Circuit made clear that any such destruction of art would be “improper and against the public interest.”All of those parts of the decision were stellar. Less so was the Court’s decision to remand the case to the district court for further analysis of five of the paintings at issue. For these five works, the Court found they were too close to call because Prince’s use was “similar in key aesthetic ways” and his alterations too minimal for the Court to rule that these paintings definitively offered new expression, meaning or message. I disagree that Prince’s different meaning and message isn’t apparent given their place in the context of his whole series of paintings, but it seems the Court was concerned that these specific works took too much of the photographs to be deemed transformative on their face. This just reiterates what we’ve known for a long time: fair use is hard for the close cases and bright line rules don’t exist.The remand notwithstanding, today’s decision protects a long-standing tradition of using existing imagery as raw material for new artistic expression and this opinion will play a key role in the fight to maintain artists’ rights to continue to do so.