Cariou v. Prince

CARIOU FIGHTS COPYRIGHT APPEAL

The Cariou v. Prince copyright saga has been going on for three years now, but at least the lawyers are keeping it interesting. In a brief filed today with the United States Court of Appeals for the Second Circuit, lawyers for French photographer Patrick Cariou sketched a David-and-Goliath-style rebuttal against appropriation artist Richard Prince and Gagosian Gallery. The brief is Cariou’s response to Prince’s appeal of the 2011 decision that found the appropriation artist guilty of copyright infringement for using cutouts of Cariou’s Rastafarian portraiture in his “Canal Zone” painting series.

“It would be difficult to imagine a starker example of ‘commercial exploitation’” than the way Gagosian marketed “Canal Zone,” wrote Cariou’s attorneys, Schnader, Harrison, Segal and Lewis. A full-sized portrait of one of Cariou’s Rastas, overlaid with a blue guitar and face mask by Prince, was widely used in promotional material for the show, including 7,500 announcement cards, the leftovers of which, lawyers pointed out, were sold to a poster company instead of being recycled, as originally planned.

They go on to trot out Gagosian’s plans for the flashy post-opening dinner. Employees were quoted describing Gagosian as “‘very strict’” and “‘super intense’” in managing the guest list. One wrote, “‘Larry would like the opening and dinner to be “kick ass” so please invite celebrities/moma/gugg/whitney curators and other clients who will BUY his work.’”

Added another, “‘Before Larry approves this list he would like to know if you have sold any art to these people. If so, he would like to see proof.’”

Gagosian testified that the list included Leonardo Di Caprio, Robert De Niro, Mick Jagger and Paris Hilton for “‘buzz’” purposes; Gisele Bundchen, Elle McPherson, Kate Moss and Christy Turlington because they “‘look good at a table,’” and Leon Black, Eli Broad, Henry Kravis, Steven Cohen, Philip Niarchos and Ronald Perelman, for… obvious reasons.

Apparently it paid off. The show generated $10.5 million in sales, 40 percent of which went to the gallery and 60 percent to Prince. (The dealings also apparently included a trade of four Prince paintings in exchange for one of Gagosian’s own works by Larry Rivers, valued at $3 to $4 million.)

As far as the legal arguments go, Cariou’s team is banking largely on the claim that Prince’s work failed to comment on or satirize Cariou’s photographs -- a common objection against applying the fair use exception to copyright law.

While Prince’s lawyers, Boies, Schiller and Flexner, convincingly argue that “Canal Zone” is “transformative” of the original works, Cariou's lawyers say that’s not enough. “That argument fails because, absent a justification for the appropriation, taking copyrighted work in order to create ‘something new’ has no practicable boundary and would effectively eviscerate the rights of copyright owners.”

After all, they point out, Prince plainly, arrogantly, and perhaps fatally, said in district court that he had no real interest in the meaning behind Cariou’s work, and that he used it strictly as “raw material.” It’s “taking for the sake of taking,” Cariou’s lawyers argue.

Memorably, one of the major arguments in Prince’s appellate brief, filed in November, was that the court should disregard Prince’s testimony on the grounds that the work should be viewed objectively. “It would create a perverse incentive for artists to lie about their artistic purpose and penalize those who do not, or those who are less articulate,” Prince’s lawyers wrote.

But Cariou’s side counters that this would set a standard unique to artists and that “even if [Prince’s] testimony harms his case, he is not being ‘penalized’ for telling the truth; he is simply being treated like any other witness.”

Cariou’s side doesn’t have the last word yet, however. Prince’s lawyers will file yet another brief in reply, followed by another from Cariou -- all before it goes to trial. Stay tuned.

RACHEL CORBETT is news editor at Artnet Magazine. She can be reached at