This week's disappointing decision handed down by the Second Circuit Court is an affront to common sense and makes a mockery of the established intellectual property rights of artists. While many were relieved that the court found Richard Prince's work "transformative" enough to warrant his defense of the fair use doctrine, the real lesson from the decision is that the fundamental guarantees enshrined in the intent, purpose, and letter of the copyright law to protect artists (in this case Patrick Cariou) are being steadily eroded. This ruling serves Larry Gagosian and Richard Prince very well (and allows them to be exceedingly well compensated), but it flies in the face of the purpose of copyright and represents a fundamental misreading of the law.
Although the decision would have you believe differently, the law governing fair use is abundantly clear:
§ 107 . Limitations on exclusive rights: Fair use40Notwithstanding the provisions of sections 106 and 106A, the fair use of a copyrighted work, including such use by reproduction... for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research, is not an infringement of copyright. In determining whether the use made of a work in any particular case is a fair use the factors to be considered shall include—
(1) the purpose and character of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;
(2) the nature of the copyrighted work;
(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and
(4) the effect of the use upon the potential market for or value of the copyrighted work.
The fact that a work is unpublished shall not itself bar a finding of fair use if such finding is made upon consideration of all the above factors.
And here's the facts as we know them: Prince bought a copy of Cariou's book Yes Rasta in 2005 and by 2007 had created a work Canal Zone drawn directly from the book's images. The work is essentially of collages torn from the book and affixed to plywood. Prince then painted lozenges over the faces and didn't use all the works in their entirety. While the court finds this transformative, the fact remains that Prince's art would not exist in this instance without Carriou's work, photographs that were protected by copyright. Carriou's photographs were not simply a part of a greater whole that Prince created (as the court seemed to think could be quantified by measuring the square inches used), but was inextricably linked to the copyrighted work of Carriou. Indeed, as Prince's subsequent actions suggest, Patrick Carriou's Yes Rasta was the foundation upon which his work was built.
In June 2008 (after he had alreasy exhibited Canal Zone) Prince bought three additional copies of Yes Rasta and then created his Canal Zone series, twenty-nine of which incorporated Carriou's images. The court's reasoning, and bizarre decision to remand five of thirty back to the lower court to determine whether or not they comply with fair use, missed the forest for the trees. By focusing on whether individual works met a standard of fair use, they overlooked the fact that the genesis of Prince's work lay in Carriou's creative efforts. What Prince did, in effect, was to mine Cariou's work for his (Prince's) commercial gain. While the court maintained that commercial interests shouldn't matter, that seems counterintuitive particularly in this case, since Prince's Canal Zone Series is essentially a commercial undertaking. Fine Art crosses the threshold from creative endeavor to commercial undertaking at the point in which an artist moves from the personal needs of creative self-expression into gallery setting with exorbitant price points.
While the court has historically recognized the importance of critical commentary, parody, and research, it had a hard time making a case for any of these in this decision. As a result, the opinion focused on "transformation" and sets a standard by which anyone can paint a lozenge over a copyrighted work, put it on a painted background, and claim fair use. By asking the question "how much appropriation is tolerable in fair use?" they got this doctrine precisely backwards; a better question would be "how much of Prince's work is indebted to Cariou's Yes Rasta and should Cariou's rights to license the work (or choice not to) be deemed less compelling than Prince's desire to create works for sale?" That's a simpler answer and a much different result--Prince's series doesn't exist in it's present form without Cariou's work. It was not only inspirational, but the imagery formed the determining foundation of the work. The very reason that fair use exists is to mediate the competing interests inherent in the monopoly of artists' rights inherent in the law and the public benefit that would be served by a distribution of the work. In this case, it's hard to imagine that the remuneration of Larry Gagosian and Richard Prince serves any definition of a public benefit.
The nagging question that was never addressed by the court's decision was why didn't Richard Prince contact Patrick Cariou and attempt to get permissions? This is standard practice in the music industry and allows artists to foster in secondary markets for their work and decide what they would like to license and have sampled. It allows artists a degree of creative control while not excluding them from participating in the marketplace. More importantly, it seems like the decent thing to do--pay someone for their work when it is essential to the work you are creating.