Cariou vs. Prince:

Appropriation artist Richard Prince has won the latest round in his copyright battle with photojournalist Patrick Cariou. Three judges for the U.S. Court of Appeals for the Second Circuit rejected Cariou’s motion to dismiss Prince’s right to an appeal yesterday, writing that “there remains ‘a continuing controversy capable of redress by this Court.’”

Prince’s lawyer, Josh Schiller of Boies, Schiller and Flexner -- who was not involved in the original case -- must turn in his appellate brief by Oct. 27, 2011.

In 2008, Cariou sued Prince, Gagosian Gallery and Rizzoli books for copyright infringement, claiming that Prince’s appropriation of some 40 photographs of Rastafarians taken from Cariou’s book Yes, Rasta failed to meet the terms of the “fair use” doctrine, which provides an exception to copyright law. The images in question comprised the series of “Canal Zone” paintings in which Prince variously painted gas masks and guitars over Cariou's and Rastas from other sources (including a Bob Marley book), added in oversized hands, and pasted on images of naked women and male torsos, among other alterations.

In March of this year, Judge Deborah Batts ruled in favor of Cariou, arguing that Prince’s series failed to meet the criteria for fair use because they were not sufficiently transformative of the original works and because Prince did not intend to comment on them. Perhaps even more surprisingly, Batts decided that Gagosian was guilty of acting in bad faith for selling the works of a “habitual user” of non-copyrighted imagery without inquiring into its permission status. Gagosian is also appealing the ruling.

Beyond the case of Prince, many observers fear that Batts’ decision sets a dangerous precedent for the future of appropriation art, and could cause a creative “chilling effect” more generally.

“Are they suggesting that galleries go into the studios of artists and say, ‘you can’t do that because that might not be fair use and we might lose a lot of money?” wondered Columbia University law professor Philippa Loengard. “Do they have to have insurance? Are they supposed to demand changes to work before exhibiting, a sort of pre-exhibit review?”

At the heart of Prince’s appeal, according to Schiller, is Batts’ assertion that an artist must explain the meaning of his or her work in hindsight. She wrote that Prince testified himself that he doesn’t “really have a message” and has “no interest in the original meaning of the photographs he uses.”

“Judge Batts put too much weight on the artist’s own characterization of his work, and the artist’s ability to articulate what their message is,” Schiller said. Besides, what’s to stop attorneys from simply coaching clients on how to describe the meaning of their art?

It may seem odd for a lawyer to want to dismiss his own client’s testimony, but, in the words of Loengard, “I think Prince’s behavior was instrumental in part of the court’s decision… he seems to have taken care to make sure that a judge had no choice but to rule against him.” In one such response, which might well be taken as arrogant, Prince said he transformed an image because the Rasta is “playing the guitar now, it looks like he's playing the guitar, it looks as if he's always played the guitar, that's what my message was.”

“The use of another artist’s work in an effort to make social commentary has been the crux of fair use determination,” she added, “to say we shouldn’t have that as a factor seems to be difficult.”

A second point of the appeal, Schiller said, is Cariou’s claim that he lost an exhibition -- and thereby suffered commercial damages -- as a direct result of Prince’s appropriation. According to testimony, Calypso boutique owner Christiane Celle, who was in the process of opening an art gallery in New York, was in negotiations with Cariou to exhibit the Rasta works. But, when Gagosian exhibited the “Canal Zone” show in 2008, Celle changed her mind. In her deposition, she said she didn’t want to look “like I'm trying to take advantage of the success of Richard Prince.”

Yet Celle also testified -- and Judge Batts did not mention this in her decision -- that she repeatedly tried to persuade Cariou to commit to the show, but he did not sign an agreement or return her calls. “There was no show, she didn’t have a gallery yet,” Schiller said. Furthermore, Schiller said he may seek to undermine her credibility since she once dated Cariou’s assistant, Thierry Des Fontaines.

In the end, Batts ordered that all of the unsold paintings be delivered up within 10 days for “impounding, destruction, or other disposition, as Plaintiff determines.” As for the eight paintings already sold (for a total of $10.8 million), collectors were forbidden from showing them publicly -- presumably meaning they can never be sold at auction, displayed in a house that could be considered public, or viewed, say, at a party hosted with the intent of showing the work. Now, 21 of the paintings -- plus all of the exhibition catalogues -- are locked up in a Long Island City warehouse.

Collectors are still free to sell works in a private setting, but, of course, prestige and value come from showing art works in a museum, a public collection or in a retrospective.

Yet in the case of Prince, an artist who routinely flouts the law -- on principle, it would seem -- the argument could be made that the lawsuit raises the works’ cachet. Adam Lindemann, a collector who purchased one of the Canal Zone paintings in 2009, “doesn’t seem too concerned about it,” Schiller pointed out. In a story for the New York Observer, Lindemann said he bought the painting precisely because it was under litigation. “It was a perfect Richard Prince scenario: a work that was made under a potential copyright violation, the subject of a lawsuit, by a self-avowed ‘appropriation’ artist.”

In an email, Lindemann said that Prince “is an artist who makes a lot of work, but these paintings are rarified, and they have a unique story, a story that is part of what makes him an artist that made history.”

Schiller said he expects a hearing date to be scheduled sometime in the new year -- still, "there is always the potential" of settling the case out of court.

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