In December of 2008 photographer Patrick Cariou filed suit confronting Ricard Prince, Gagosian Gallery, Lawrence Gagosian and Rizzoli International Publications in federal district court (here). The suit came about after Prince appropriated 28 images from Patrick'southward Yes Rasta book for his Canal Zone exhibit at the Gagosian gallery. Several of the pieces, as yous can see from the comparisons below ,were barely changed under the "artist's" paw.

Yesterday, U.s. District Judge Deborah A. Batts ruled on the cross-motions for summary judgment:

Defendants Richard Prince, Gagosian Gallery,  Inc., and Lawrence Gagosian seek a decision that their use  of Plaintiff's copyrighted photographs was a fair utilise under the relevant section of the Copyright Human activity, 17 United states of americaC. §§ 107(1)-(4), and that Plaintiff's merits for conspiracy to violate his rights under the Copyright Act is barred by law. Plaintiff seeks summary judgment in his favor on the consequence of liability for copyright infringement.

She plant that the employ past Prince was not Fair Use, the conspiracy claim was found to exist barred by law and Patrick'south effect of liability for copyright infringement was granted in its entirety. In other words, Patrick won.

I'm sure at that place volition be an entreatment, only this is quite a victory for photographers and the judgment is fascinating reading for fair use buffs (download it here), What I actually plant interesting is how badly most people (myself included) translate the transformation function of appropriating works. Everyone talks nigh calculation value through transformation simply the reality is that you must be commenting on the original image or expression in some way. This line quoted from Rogers vs. Koons puts the nail in the idea of adding value as some kind of transformation "If an infringement of copyrightable expression could be justified equally fair use solely on the basis of the infringer's merits to a college or different artistic utilise . . . there would be no practicable boundary to the off-white utilise defense." Transforming a picture of President Obama into a poster does not qualify nor does commenting on commercial advertising past taking close upward shots of cowboys in cigarette advertising images.

I've included some highlights from the 38 page filing:

Some of the paintings, like "Graduation (2008)" and "Culvert Zone (2008)," consist virtually entirely of images taken from Yes, Rasta, admitting collaged, enlarged, cropped, tinted, and/or over-painted, while others, like "lIe de France (2008)" use portions of Aye, Rasta Photos as collage elements and likewise include appropriated photos from other sources and more substantial original painting.

In total, Prince admits  using at least 41 Photos from Yes, Rasta as elements of Canal  Zone Paintings

Other than past private sale to individuals Cariou knew and liked, the Photos have never been sold or licensed for employ other than in the Yes, Rasta volume. However, Cariou testified that he was negotiating with gallery owner Christiane CelIe ("CelIe"), who planned to show and sell prints of the Yeah, Rasta Photos at her Manhattan gallery, prior to the Canal Zone show's opening. Cariou too testified that he intended in the future to issue artists' editions of the Photos, which would be offered for sale to collectors.

when CelIe became aware of the Canal Zone exhibition at the Gagosian Gallery, she cancelled the show she and Cariou had discussed. CelIe testified that she decided to cancel the bear witness considering she did not want to seem to be capitalizing on Prince's success and notoriety, and because she did not want to exhibit work which had been "done already" at another gallery.

Defendants assert that Cariou'due south Photos are mere compilations of facts concerning Rastafarians and the Jamaican landscape, bundled with minimum creativity in a manner typical of their genre, and that the Photos are therefore not protectable as a matter of police, despite Plaintiff's extensive testimony about the artistic choices he made in taking, processing, developing, and selecting them. Unfortunately for Defendants, it has been a affair of settled law for well over one hundred years that creative photographs are worthy of copyright protection even when they depict existent people and natural environments. See,~, Burrow-Giles Lithographic Co. 5. Sarony, 111 U.South. 53, threescore {1884}

From the infancy of copyright protection, some opportunity for fair apply of copyrighted materials has been idea necessary to fulfill copyright'south very purpose, "[t]o promote the Progress of Scientific discipline and useful Arts …." Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 575 (1994) (quoting U.S. Const., Art. I, § 8, cl. eight). At the Ramble level, while the "Copyright Clause and the Beginning Subpoena [are] intuitively in disharmonize, [they] were drafted to work together to forbid censorship" such that "the balance between the Starting time Subpoena and copyright is preserved, in part, by the idea/expression dichotomy and the doctrine of fair utilise

although "the monopoly created past copyright … rewards the individual author in gild to benefit the public[,]" on the other paw "the monopoly protection of intellectual property that impeded referential assay and the development of new ideas out of former would strangle the artistic process."

Now, looking into the 4 factors that make upward fair utilize:

(1) the purpose and grapheme of the use, including whether such use is of a commercial nature or is for nonprofit educational purposes;

(2) the nature of the copyrighted work;

(3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole; and

(4) the effect of the use upon the potential market for or value of the copyrighted work.

The judge weighs each 1:

1. The Purpose and Grapheme of Prince's Apply of the Photos

i. Transformative Employ

the fact that a piece of work "recast[s], transform[s], or accommodate [due south] an original piece of work into a new mode of presentation," thus making it a "derivative work" nether 17 United states of americaC. § 101, does not make the work "transformative" in the sense of the outset fair use gene.

The cases Defendants cite for the proposition that utilise of copyrighted materials as "raw ingredients" in the creation of new works is per se off-white use do not support their position, and the Courtroom is aware of no precedent belongings that such use is fair absent transformative comment on the original. To the reverse, the illustrative off-white uses listed in the preamble to § 107 ­ "criticism, comment, news reporting, teaching [ …], scholarship, [and] inquiry" – all have at their cadre a focus on the original works or their historical context, and all of the precedent this Court tin identify imposes a requirement that the new work in some way annotate on, chronicle to the historical context of, or critically refer dorsum to the original works.

"If an infringement of copyrightable expression could exist justified as off-white utilize solely on the basis of the infringer's claim to a higher or different artistic use . . . there would exist no practicable purlieus to the fair utilize defense." Rogers v. Koons, 960 F.2nd at 310. The Court therefore declines Defendants' invitation to find that cribbing art is per se fair utilize, regardless of whether or not the new artwork in whatever way comments on the original works appropriated. Accordingly, Prince's Paintings are transformative but to the extent that they comment on the Photos; to the extent they merely recast, transform, or adapt the Photos, Prince's Paintings are instead infringing derivative works.

Prince testified that he doesn't "really have a bulletin" he attempts to communicate when making art.

ii. Commerciality

As a consequence of these and other marketing efforts, Gagosian Gallery sold eight of the Canal Zone Paintings for a total of $10,480,000.00, 60% of which went to Prince and 40% of which went to Gagosian Gallery. Seven other Culvert Zone Paintings were exchanged for art with an estimated value between $6,000,000.00 and $8,000,000.00. Gagosian Gallery sold $6,784.00 worth of Canal Zone exhibition catalogs.

This Court recognizes the inherent public interest and cultural value of public exhibition of art and of an overall increase in public admission to artwork. Even so, the facts earlier the Court show that Defendants' employ and exploitation of the Photos was too essentially commercial, especially where the Gagosian Defendants are concerned.

iii. Bad Faith

Prince'due south employee contacted the publisher of Yes, Rasta to buy additional copies of the volume, merely evidently neither Prince nor his employee always asked the publisher near licensing or otherwise sought permission to utilize Yes, Rasta or the Photos contained therein legitimately. Nor did Prince attempt to contact Cariou by email and inquire about usage rights to the Photos, even though Yes, Rasta clearly identified Cariou equally the sole copyright holder and even though Cariou's publicly-accessible website includes an email address at which he may be reached. Under these circumstances, Prince'southward bad faith is evident.

Moreover, since the tape establishes that the Gagosian Defendants were enlightened that Prince is an habitual user of other artists' copyrighted work, without permission, and because the record is every bit articulate that the Gagosian Defendants neither inquired into whether Prince had obtained permission to utilise the Photos independent in the Canal Zone Paintings nor ceased their commercial exploitation of the Paintings after receiving Cariou'due south cease-and-desist notice, the bad religion of the Gagosian Defendants is equally articulate

two. The Nature of the Copyrighted Work

"The statutory articulation of this factor derives from Justice Story's mention … of the 'value of the materials used.' Justice Story's give-and-take choice is more chatty than our statute's 'nature of,' every bit information technology suggests that some protected matter is more 'valued' under copyright that others. This should non be seen as an invitation to judges to pass on [artistic] quality, just rather to consider whether the protected [work] is of the creative or instructive type that the copyright laws value and seek to foster."

Here, the Court finds that Cariou'southward Photos are highly original and creative artistic works and that they establish "artistic expression for public dissemination" and thus "fall[] within the core of the copyright's protective purposes."

3. The Amount and Substantiality of the Portion Used

In a number of his Paintings, Prince appropriated entire Photos, and in the bulk of his Paintings, Prince appropriated the central figures depicted in portraits taken by Cariou and published in Yeah, Rasta. Those central figures are of overwhelming quality and importance to Cariou's Photos, going to the very center of his work.

four. The Effect of the Use Upon the Potential Marketplace for or Value of the Copyrighted Work

Defendants' protestations that Cariou has non marketed his Photos more aggressively (or, indeed, equally aggressively as Prince has marketed his Paintings) are unavailing. Equally the Second Circuit has previously emphasized, the "potential market" for the copyrighted work and its derivatives must be examined, even if the "writer has disavowed whatever intention to publish them during his lifetime," given that an author "has the correct to modify his mind" and is "entitled to protect his opportunity to sell his [works]."

Finally after the gauge ruled that they violated Patrick's copyright and are liable:

That Defendants shall within ten days of the date of this Order deliver up for impounding, destruction, or other disposition, as Plaintiff determines, all infringing copies of the Photographs, including the Paintings and unsold copies of the Culvert Zone exhibition book, in their possession, custody, or control and all transparencies, plates, masters, tapes, film negatives, discs, and other articles for making such infringing copies. That Defendants shall notify in writing any electric current or future owners of the Paintings of whom they are or become enlightened that the Paintings infringe the copyright in the Photographs, that the Paintings were non lawfully fabricated under the Copyright Human activity of 1976, and that the Paintings cannot lawfully be displayed nether 17 The statesC. § 109(c)

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