By Chris Young

You know you have made it as a photographer when your work is appropriated by an artist well known for relying on other artists’ copyrighted material. Last month, the Court of Appeals for the Second Circuit reversed a lower court ruling that would have compelled American appropriation artist Richard Prince to turn 30 works of art over to the plaintiff, photographer Patrick Cariou. The works in question, paintings and collages exhibited in 2007 and 2008, used some of Cariou’s photographs of Rastafari from his 2000 book, Yes Rasta.

Prince began appropriating photographs in 1975 and is considered one of the foremost artists in the field. Appropriation art, which arguably reached its zenith of popularity in the 1970s, consists of images pulled from other artists: “‘the more or less direct taking over into a work of art a real object or even an existing work of art.’” Prince’s appropriation of photographs has been labeled “rephotography.” In 2005, his “rephotograph” image, Untitled (Cowboy), sold at auction for more than $1 million.

In finding that Prince’s works infringed upon Cariou’s copyrighted material, the district court for the Southern District of New York reasoned that Prince’s works were not fair use because they failed to comment or refer critically to Cariou’s photographs. After all, Prince had simply ripped the pages out of a copy of Yes Rasta and fixed them to plywood.  Nevertheless, amicus briefs, from interested parties such as Google, argued that the lower court’s decision departed “dangerous-[ly]” from the standard analysis.

Under the standard analysis, an author’s fixed, tangible expression may be copyrightable, but subject nonetheless to a fair use exception. This exception may be understood as a carve-out designed to promote free expression and the intellectual enrichment of the public. The ultimate test of fair use is whether the purpose of copyright law— to “promote the progress of Science and useful Arts,” would be better served by allowing the use or not. Unsurprisingly, the doctrine’s contours have been recognized as “the most troublesome in the whole law of copyright.”

On April 25, 2013, the appellate court reversed, concluding that 25 of Prince’s paintings were transformative insofar as they “manifest an entirely different aesthetic from Cariou’s photographs.” The Court dispatched the lower court’s requirement that fair use must make a secondary use comment on the original artist or work. Instead, it held that to qualify as fair use, a new work must alter the original work with new expression, meaning, or message.

Prince’s work had done just that.  Notwithstanding the limited physical alteration of the original work, Prince contested that he “completely tr[ies] to change [another artist’s work] into something that’s completely different.” Since transformative works “lie at the heart of the fair use doctrine’s guarantee of breathing space,” Prince’s works fall within the contours of the fair use exception:

            Where Cariou’s serene and deliberately composed portraits and landscape photographs depict the natural beauty of Rastafari[] and their surrounding environs, Prince’s crude and jarring works, on the other hand, are hectic and provocative. Cariou’s black-and-white photographs were printed in a 9 1/2″ x 12″ book. Prince has created collages on canvas that incorporate color, feature distorted human and other forms and settings, and measure between ten and nearly a hundred times the size of the photographs. Prince’s composition, presentation, scale, color palette, and media are fundamentally different and new compared to the photographs, as is the expressive nature of Prince’s work.

Some pieces, however, failed to sufficiently alter Cariou’s originals:  the five least transformative works were remanded back to the district court for further review. For example, Graduation, in which Prince only added lozenges over the eyes and mouth of a Rastafari and an electric guitar to his grip, could not elicit the court’s stamp of approval.

This blogger could not determine whether the Cariou opinion has mollified Google, but the impact seems clear: from a narrow view, a “rephotographer’s” fair use turns on the transformative nature of the appropriation; from a broader perspective, the court seems to have implied that companies may rely on copyrighted material in making, branding, or selling new products–so long as such use is transformative. This begs the question, doesn’t the first fair use factor, purpose of use, weigh against commercial fair use? Well no, the Cariou court stated, “Congress ‘could not have intended’ a rule that commercial uses are presumptively unfair,” rather, “‘[t]he more transformative the new work, the less will be the significance of other factors, like commercialism, that may weigh against a finding of fair use.’” Thus, businesses who rely upon copyrighted works should fret less about the commercial nature of their use as a bar to fair use and more about sufficient transformation.