Reprinted with permission from the February 7, 2014 issue of Corporate Counsel. © 2014 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.

On Nov. 12, 2013, the U.S. Supreme Court declined to grant a writ of certiorari in Cariou v. Prince, leaving intact the decision by the U.S. Court of Appeals for the Second Circuit on copyright fair use in the context of appropriation art. The Second Circuit’s adoption of a “reasonable observer” standard to decide if allegedly infringing works are transformative enough to qualify as fair use may add more ambiguity to an important and already difficult area of copyright law. And it does so at a time when content creators and users need more, not less, predictability in assessing and protecting their respective risks and interests. This article provides a synopsis of Cariou and suggests ways to assess risk given the current state of the fair use defense.

Patrick Cariou is a professional photographer. Over a six-year period, he created and published “Yes Rasta,” a book of original, classically styled black-and-white portraits of Rastafarians and landscapes in Jamaica. Richard Prince is a well-known appropriation artist. He bought three “Yes Rasta” books and used multiple photos from them to create a series of paintings entitled “Canal Zone.” Some 30 of these resulting paintings incorporated photos from “Yes Rasta,” modified in varying degrees, including painting opaque forms on faces, transposing head shots onto body images from other sources, enlarging and tinting the photos, and adding other elements, such as settings and images of nude women. In some of the paintings, Cariou’s photos were “readily apparent.” In others, they were “almost entirely obscured.” Cariou v. Prince (2013). Fifteen of Prince’s paintings were sold or traded for between $16 and $18 million.

Cariou sued Prince for copyright infringement in the Southern District of New York. The district court granted Cariou summary judgment. Rejecting Prince’s fair use defense, the court relied heavily on Prince’s admitted lack of interest in commenting on the photos or on popular culture. To the extent the paintings “merely recast, transform, or adapt the Photos,” the district court said, they are “infringing derivative works.” Cariou v. Prince (2011). The court’s formulation seemed to reduce the chance that an artist who uses another artist’s work merely as raw material for subsequent works can establish fair use. The court granted injunctive relief and entered an order allowing for the destruction of Prince’s paintings.

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Copyright Fair Use: More Complex Than Ever? Corporate Counsel