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Mar. 21, 2011

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Face it, the notion of “appropriation” just doesn’t play well in our law courts. On Mar. 18, 2011, U.S. District Court judge Deborah A. Batts ruled that Richard Prince had infringed the copyright of photographer Patrick Cariou when Prince appropriated 41 photographs from Cariou’s Yes Rasta (PowerHouse Books, 2000, $60), a book of photographs of Rastafarians in Jamaica, for Prince’s own show of artworks at Gagosian Gallery in New York City titled “Canal Zone.”

Prince’s mural-sized collage-and-painting works used figures of Rastafarians from Cariou’s photographs, altering them notably by placing oval shapes over the eyes and mouths of the figures, and by inserting guitars into their hands, sometimes combining them with figures of pornographic nudes (not photographed by Cariou). The exhibition took place Nov. 8-Dec. 20, 2008. Cariou filed his copyright infringement lawsuit against Prince, Gagosian Gallery and Rizzoli (publishers of the catalogue) in December of 2008.

Prince argued that Cariou’s photographs were “mere compilations of facts” arranged “in a manner typical of their genre,” and therefore not protected by copyright law. Judge Batts rejected this argument, pointing out that copyright protection has been given for over a century to photographs of real people and their environment.

More importantly, perhaps, the judge rejected Prince’s claim that his “Canal Zone” works represented “fair use” of Cariou’s original photographs, particularly because Prince’s works do not specifically comment on Cariou’s originals. In testimony Prince admitted that he was not commenting on Cariou’s photographs or Rastafarian culture, but rather sought to pay homage to Cézanne, de Kooning, Picasso and Warhol and other artists. Prince also said that he intended to emphasize three themes: men and women; men and men; and women and women.

Citing the judgment in the 1992 Rogers v. Koons case -- involving Jeff KoonsString of Puppies sculpture copied from Art Rogers’ postcard photo -- the judge noted that allowing copyright to be infringed solely on the claim of a “higher artistic use” would in practical terms eliminate copyright protection altogether.

What’s more, the court found that Prince’s motive in copying Cariou’s photographs was primarily commercial, citing the fulsome proceeds from the exhibition, which were described in court papers. Prince made 29 “Canal Zone” artworks, with all but one including imagery from Yes Rasta. Gagosian sold eight of the works for a total of $10,480,000, with the gallery taking 40 percent of the proceeds. Seven more “Canal Zone” paintings were exchanged for unspecified artworks, valued between $6,000,000 and $8,000,000. Almost $7,000 worth of catalogues were sold.

Finally, the court ruled that Prince showed “bad faith” when he appropriated the images without attempting to license them properly. Prince testified that when selecting images for his work, copyright considerations played no part; rather, his selections are made simply on the grounds of whether he likes the image or not.

The ruling also found Gagosian Gallery liable for Prince’s infringements, on the grounds that the gallery should have ensured that Prince had the rights to the material he used before the gallery offered the items for sale.

What’s up next? Barring an appeal, Judge Batts has ordered the artist and his gallery to stop displaying and promoting the “Canal Zone” works -- still available on the gallery website at this writing -- and to deliver up all the infringing works to Cariou within 10 days of the judgment, or by Mar. 29, 2011. Furthermore, collectors of any “Canal Zone” paintings cannot now lawfully display them.

A hearing on damages is scheduled for May 5, 2011. For the complete court decision, click here.

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