In Cariou v. Prince, the Second Circuit has arguably expanded the scope of fair use in the context of appropriation art. In its decision, the majority not only reversed the district court’s summary judgment in favor of the plaintiff photographer, but entered its own summary judgment in favor of the defendant with respect to 25 of the 30 works at issue, and remanded for further proceedings with respect to the other five. Crucially, the majority held that in analyzing the first fair use factor (the purpose and character of the use), the defendant’s work need not comment upon or criticize the plaintiff’s work in order to be deemed transformative.
The plaintiff in Cariou is a photographer named Patrick Cariou who, among other things, had published a series of photographs depicting various aspects of Rastafarian culture in Jamaica. The defendant, Richard Prince, is a noted “appropriation” artist, whose work consists predominantly of taking pieces of other artists’ work and modifying and/or combining them. Prince took several photographs from Cariou’s book and used them as the raw material for thirty paintings and collages, which were then exhibited at art galleries and sold for millions of dollars, and reproductions of which were featured in an exhibition catalog. All of this was done without Cariou’s permission and Carious subsequently sued Prince for copyright infringement.
The district court granted summary judgment to plaintiff Cariou, holding that no reasonable jury could find Prince’s works to be fair use, with each of the four use factors weighing against fair use as a matter of law. With respect to the first factor, the court relied heavily upon the Prince’s deposition testimony, in which he acknowledged that he had not intended to comment upon or criticize Cariou’s photographs, or any subject matter commonly associated with Cariou. Based upon this admission, the district court held that the defendant’s works were not transformative, in the fair use sense. Having found the crucial first factor weighed against fair use, the district court (as most courts do, for better or worse) proceeded to find that the other fair use factors either weighed against fair use or were irrelevant in light of the lack of transformative use.
On appeal, the Second Circuit reversed in part, vacated in part, and remanded for further proceedings. With respect to the first factor, the court held that the district court erred by requiring all transformative uses to comment upon or criticize the plaintiff’s work. In a discussion that is far from clear, the Second Circuit held that 25 of the 30 works were transformative (as a matter of law) because they “manifest an entirely different aesthetic from Cariou’s photographs.” The court focused on the differences between the two artists’ “composition, presentation, scale, color palette, and media.” The decision does not clearly or persuasively explain what is left of the exclusive right to create derivative works if such differences, alone, are sufficient to render a work based upon another transformative.
Much like the district court (and a distressing trend in both district court and appellate fair use decisions), once a transformative use was found the Second Circuit made short shrift of the other factors. Temporarily skipping the next two factors, the court held that the fourth factor weighed against finding fair use because (without reference to any particular record evidence supporting this finding) the two artists’ target audiences were different, and further because the aesthetic qualities of the two works were different. The court held that the most important factor was that the two works did not substitute for one another in the marketplace, and noted the lack of any evidence that Cariou had or would license his photographs for use in appropriation art.
Flipping back up to the second factor (the nature of the plaintiff’s work), the court held that although Cariou’s photographs were artistic works and therefore the second factor weighed against finding fair use, this factor was “of limited usefulness” due to the transformative nature of the use. Finally, turning to the third factor, the amount and substantiality of the portion used in relation to the plaintiff’s work as a whole, the court again found again that with respect to 25 of the 30 works this factor weighed in favor of finding fair use. This part of the opinion is particularly muddled, in that it seems to confuse the question of transformative use with the question of whether too much was used. Indeed, the court rejected the district court’s determination that the defendant’s taking was “substantially greater than necessary,” holding that “the law does not require that the secondary artist may take no more than is necessary.” This is a particularly disturbing rhetorical ploy. First, the district court did not say that a fair user may take no more than necessary to accomplish his or her purpose (a strict rule that has been rejected by the courts). Rather, the district court followed significant precedent (including the Supreme Court in Campbell v. Acuff Rose Music) holding that the third factor must be balanced with the first factor and the defendant may not use substantially more than necessary to accomplish a transformative purpose. The Second Circuit ignored this precedent, again using the first factor to short-circuit any analysis under the third factor, simply reasoning with respect to 25 of the 30 works “Prince transformed those photographs into something new and different and, as a result, this factor weighs heavily in Prince’s favor.”
The court’s analysis differed, however, for five of the 30 works at issue. For these five, the Second Circuit held that the fair use analysis was less certain and remanded the case back to the district court for further proceedings. Given the Second Circuit’s mixing of the first and third factors, it is difficult to tell whether the court’s different treatment of these five images was based upon the first factor or the third factor (or both).
It is difficult to attempt an understanding of the court’s analysis without considering at least some of the images at issue. Here is one of Cariou’s photographs that was used in many of Price’s pieces of appropriation art, followed by two different works by Price that used Cariou’s photograph:
The first Price work (with the blue guitar) was one of the five works that were not found to be fair use as a matter of law, while the second Price work (mixing multiple copies of Cariou’s subject with other appropriated photographs of nude women) was one of the 25 found to be fair use as a matter of law.
Notably, Judge Wallace (of the Ninth Circuit, sitting by designation) issued a separate opinion, concurring in part and dissenting in part. While Judge Wallace agreed with much of the majority’s legal reasoning, he took issue with the majority’s heavy reliance on its own factual determinations (and art criticism). Judge Wallace would have remanded the entire case to the district court with only legal clarifications to allow the district court to determine whether additional evidence were necessary and apply the corrected law to the record evidence. He humbly noted that he was not comfortable making the various artistic and factual judgments made by the majority, and suggested that such judgments should not be taken away from the district courts lightly or frequently.
Here is a copy of the majority and dissenting opinions: