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gary-m-schuster-smallCariou vs. Prince, a court case of interest to artists of all kinds, was handed down April 25, 2013, by the influential U.S. Court of Appeals for the Second Circuit in New York. The court held that the use of photographs, taken by photographer Cariou, as the basis of artwork by artist Prince, came within the “fair use” exception to copyright. Prince did not need permission from Cariou and did not have to share profits with him. The ruling has been welcomed by artists, arts groups, museums and others as promoting freedom of expression and the creation and dissemination of works of art.

Under copyright law, when one work of art (the “original”) is used as the basis of another work of art, that second work is called a “derivative work” because it was derived from the first. The use of original art in this way is centuries old. Classical music has many examples of “variations on a theme by…:” Today, in music, the use of preexisting sounds is called “sampling.” It is called “appropriation” in the visual arts, and it might be “parody” in literature.
Particularly with the advent of digital technology, “appropriation” has exploded in recent years across virtually all genres of art. It has also been widely noted that copyright law does not keep up with technology and progress, and is often used to suppress rather than promote artistic expression and distribution. As a result of the Cariou vs. Prince case, artists now have more ability to create these kinds of works, and museums and others have more freedom to display and exhibit them.

The case began with a book of photographs of Rastafarians in Jamaica by the photographer, Patrick Cariou, called “Yes Rasta.” In court papers, the photographs taken by Mr. Cariou are described as “serene and deliberately composed portraits and landscape photographs depict (ing) the natural beauty of Rastafarins and their surrounding environs.”


In Cariou’s book, the photographs were printed in black and white on 9½” x 12″ paper. Artist Richard Prince took several of these photographs as a starting point and blew them up to a much larger size, colored them, and added new elements such as an electric guitar and blue shapes over the subject’s eyes and mouth. The Court described the impression of these modified photographs as hectic, jarring and provocative. Mr. Cariou sued for copyright infringement, naming as defendants both Mr. Prince and the art gallery that showed the works.

In the trial court, judgment was for Mr. Cariou. The court ruled that in order to have the benefit of the fair use exception to copyright, the derivative art work must be “transformative” of the original by commenting on or critiquing either the original artwork or its author. However, that ruling was overturned on appeal. The appeals court held that commenting on the original work is not requirement of fair use. Transformation can occur as long as the derivative artwork has a different character, gives the work a new expression, or employs new aesthetics with creative and communicative results that are different from the original work.

This new test is quite different from the comment/critique test applied by the trial court. It should result in a broader ability for artists to incorporate preexisting works into their own works. Still, artists and distributors are warned it is not always easy to find the line between illegal copyright infringement and artistic transformation.

Gary Schuster is Senior Counsel on the Business & Estates Team. He can be reached by phone at 845-778-2121 toll free or 845-778-2121 and by email.

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