The Reasonable Observer on Remand: Fair Use Project Teams with the Andy Warhol Foundation and Robert Rauschenberg Foundation in Filing Amici Curiae Brief in Cariou v. Prince (S.D.N.Y.)

On Tuesday, the Fair Use Project, along with the good folks at Bingham McCutchen LLP and Virginia Rutledge, filed a brief amici curiae on behalf of the Andy Warhol Foundation for the Visual Arts, Inc., and the Robert Rauschenberg Foundation in the Cariou  v. Prince remand.

The Second Circuit’s May 2013 decision in this case clarified several thorny issues in the fair use case law. Most notably, the panel held that a second work may be “transformative even without commenting on [the underlying] work or on culture, and even without [the artist’s] stated intention to do so.” Rather, “[w]hat is critical is how the work in question appears to the reasonable observer[,]” with the court “examin[ing] how the artworks may ‘reasonably be perceived’ in order to assess their transformative nature.” Applying this standard, the Court of Appeals held that 25 of the works at issue were transformative fair uses as a matter of law. However, the panel remanded five works for further proceedings in the district court, noting that the remaining works “differ[] from, but [are] still similar in key aesthetic ways to Cariou’s photographs[, and i]t is unclear whether the[ ] alterations [made by Prince] amount to a sufficient transformation of the original work of art such that the new work[s are] transformative.”

Now that the case is back before the district court, we filed an amici brief to urge the trial court to consider additional evidence in order to determine whether the remanded works are transformative as a matter of law. We argue that in deciding how the work in question appears to the reasonable observer, the Court is not limited to a purely visual comparison of the works, and instead should consider non-visual evidence, including expert testimony and contextual evidence from the broader art community regarding the newness of expression, meaning, or message that may be found in Mr. Prince’s works.

Our brief is intended to help guide the fair use inquiry in light of the Second Circuit’s decision so that existing and future artistic practices aren’t threatened. As we argue in the brief, “If non-visual evidence of new meaning, including contextual evidence, were to be ignored by the courts, ‘some works of genius would be sure to miss appreciation . . . [, t]heir very novelty would make them repulsive until the public had learned the new language in which their author spoke.’” The brief also articulates why specialized expertise is necessary in a case such as this, where a factfinder cannot find sufficient transformation on the face of the works at issue.

You can read more about the case from our friends at the Warhol Foundation, here.