An influential appeals court sided with famed appropriation artist Richard Prince in a copyright case that has been closely watched in high art and legal circles. The decision, handed down last week in New York, is likely to have ripples beyond the art world and to provide more grist for the debate over how much control artists should have over their images.
The controversy turned on art projects in which Prince incorporated photographs from Yes Rasta, a portrait book about Rastafarians by photographer Patrick Cariou. In some cases, Prince altered the photos so the originals could barely be recognized:
But in other cases, Prince made only minor alterations, such as adding face blotches and a blue guitar:
Cariou, who earned about $8,000 from the sale of his book, sued Prince for copyright infringement. Prince, whose individual works fetched up to $2 million, argued that his modifications amounted to a “fair use” exception under copyright law.
In 2011, a federal judge sided with Cariou and issued an injunction against Prince and an order for any unsold works to be destroyed (they were not).
Can judges be art critics?
In her decision, U.S. District Judge Deborah Batts concluded that Prince’s work was not transformative — and did not qualify for fair use — because it didn’t satirize or otherwise comment on the original photographs. On appeal, a unanimous three-judge court wrote that Batts got the law wrong and said there was no such requirement under fair use.
Citing Andy Warhol’s Campbell Soup cans and the rap group 2 Live Crew’s parody of “Pretty Woman,” the appeals court noted that many fair use cases did indeed comment on the original, but that this was not essential. In the case of Prince, the court said, his works are transformative in part because they are “hectic and provocative” compared to Cariou’s serene and beautiful photographs.
On a technical level, the “transformative” requirement is just a sub-step in one part of a four-pronged fair use analysis. Increasingly, however, it’s also becoming a shorthand for courts to determine if someone is using an image in a new and legitimate fashion, or just ripping off and devaluing the original.
In resolving the Prince case, the appeals court found that 25 of the 30 images were transformative but added that it did could not say “confidently” whether five of the others — including the blue guitar picture — were as well. It returned the case to the original judge to mull over the five pictures in more detail.
One of the three appeals court judges stated, however, that he was uncomfortable acting in the role of art critic and that the original judge should re-evaluate all 30 pictures with the help of expert opinion and other evidence:
“Indeed, while I admit freely that I am not an art critic or expert, I fail to see how the majority in its appellate role can ‘confidently’ draw a distinction [...] Certainly we are not merely to use our personal art views to make the new legal application to the facts of this case … It would be extremely uncomfortable for me to do so in my appellate capacity, let alone my limited art experience.”
So what is “transformative” on the internet?
The Prince decision could affect not just the art world, but internet culture as well. That’s because the decision comes at a time when images are becoming ever more central to online news and social media platforms — and while the rules for using them are unclear.
Sites like BuzzFeed, for instance, have taken an aggressive approach to image appropriation, declaring that almost any use is “transformative.” This approach is well-suited to the fast-paced, mash-up style of internet journalism but is also a source of frustration to photographers and others who feel artists deserve more control over their work.
The Prince ruling, while not a green light for anyone to use photographs as they see fit, appears to provide broader legal cover to appropriation artists and experimenters. Here’s the decision itself with some of the more significant passages underlined.
A previous version of this article stated that the “Pretty Woman” parody was by Salt-n-Pepa. It was by 2 Live Crew.