Cariou v. Prince

Richard Prince may have finally found the arguments he needs to prevail in the controversial copyright case he’s been fighting since 2008. A 92-page appeal filed by law firm Boies, Schiller & Flexner on Oct. 26, 2011, makes a strong case that circuit court judge Deborah Batts ruled against the appropriation artist -- and in favor of French photographer Patrick Cariou -- in error this past March.

The appeal refutes Cariou’s claim that when Prince appropriated portraits from his book Yes, Rasta for a series of 30 collage-paintings titled “Canal Zone,” it harmed Cariou’s market and infringed on his copyright.

"Canal Zone" represents "a case of the transformative use of existing 'raw material' to create 'new information, new esthetics, new insights and understanding'," the brief claims in its introduction.

Prince’s attorneys, Jonathan Schiller, Josh Schiller and George Carpinello, frequently cite the 2005 copyright case Andrea Blanch v. Jeff Koons, in which the advertising photographer sued Koons -- and lost -- after the artist used one of her images of a woman's leg as source material for his painting Niagara (2000). In that case, the judge decided that Koons’ “purposes in using Blanch’s image are sharply different from Blanch’s goals in creating it,” and that the artist’s picture constituted fair use, which provides an exception to copyright protection. Prince’s lawyers appeal to the same logic, arguing that Prince’s appropriation of Cariou’s photos was a significant and dramatic transformation.

“The fair use doctrine is the most important tool courts have to ensure that copyright does not choke the creativity it is supposed to foster,” said Anthony Falzone, a lawyer for the Andy Warhol Foundation, in a statement announcing that the organization has filed an amicus brief in support of Prince. Warhol Foundation chair Michael Straus noted as well that the decision "created such uncertainty in the field" that it caused "a chilling effect on the creation of new works.”

Prince's brief argues that Cariou’s book of photographs presents "romantic, traditional portraiture" that depicts its Rastafarian subjects as “noble savages” living in a peaceful, idealized community. Prince's "Canal Zone" artworks, by contrast, with their pasted-on images of nude women, painted guitars and caricatured faces, suggest the opposite -- a post-apocalyptic world of hypersexuality, chaos and rock and roll. Prince, according to the appeal, is “critiquing [Cariou’s] naïve vision of that beauty.”

In her original decision, Judge Batts ruled that Cariou's copyright was infringed because Prince failed to comment on Cariou's photos, saying that Prince didn’t “really have a message” and has “no interest in the original meaning of the photographs he uses.”

This finding is answered with an argument that seems to come straight out of postmodernist picture theory, i.e. that Prince, as an artist, should not be required to give the final word on his own artworks. Prince's "reluctance to impute a definitive artistic meaning is consonant with the core post-modern belief that an artist’s intent is irrelevant because an artwork’s meaning is manifold, malleable, and does not have one single meaning in the eye of the viewer,” according to the brief.

That said, Prince’s lawyers take on that interpretive task themselves, offering a reading of Prince's artwork that is, of course, quite different than the meaning Cariou gave to his photographs. Through Prince’s paintings, the brief claims, Cariou’s utopian Rasta world “is now debased, plunged into the degraded and commercialized space of sex, drugs and popular music that American culture stereotypically associates with Rastafarians.”

Another major part of the brief attacks Cariou’s claim that Prince’s appropriation cost him commercial opportunities. Cariou’s publisher, PowerHouse, Inc., sold 5,791 copies of Yes, Rasta, according to the court papers, and he earned $8,087.75 in royalties. The book, which has been out of print since before Prince took the images, went up in price from $50 to between $60 and $100 “sometime after this litigation was commenced.”

The appeal goes on to point out that since Yes, Rasta’s publication in 2000, Cariou has sold just four prints of his photographs, while Prince quickly sold eight of his “Canal Zone” paintings -- for between $400,000 and $2.3 million apiece. What's more, Gagosian Gallery, a co-defendant in the suit, apparently invested $434,730 in marketing the works. Right now, the 21 unsold paintings are locked up in a Long Island City warehouse pending the appeal. If Cariou wins, Gagosian’s investment and the remaining art works could all be destroyed, if Cariou so chooses.

Until then, we’ll have to wait and see. Cariou’s counsel files its opening brief Jan. 25, 2012.

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