The Second Circuit Court of Appeals partially reversed and partially remanded a lower court holding of copyright infringement in favor of noted appropriation artist Richard Prince. In 2007 and 2008, Prince exhibited a set of paintings and collages that incorporated photographs of Rastafarians and landscapes in Jamaica. As is common in appropriation art, Prince cut out portions of certain photographs and changed others by painting marks over the subjects’ facial features, sometimes combining the photographs with other works as well.

Patrick Cariou, the photographer who owns copyrights in these photographs, filed a lawsuit for copyright infringement against Prince, a gallery owner, and the gallery that showcased the work in exhibits and an exhibition catalog. The United States District Court for the Southern District of New York initially entered a permanent injunction against Prince, holding that his works failed to constitute fair use because they did not comment on Cariou, the photographs, or a closely related aspect of popular culture.

On appeal, the Second Circuit court clarified that although a work commenting on the original work may sometimes qualify as fair use, such commentary is not required for a work to be transformative. Instead, a work generally constitutes fair use if it “alter[s] the original with ‘new expression, meaning, or message.’” In this case, the appeals court applied the four fair use factors to the works and held that twenty-five of Prince’s thirty paintings at issue constituted fair use. The court explained that these works “manifest an entirely different aesthetic from Cariou’s photographs” and are transformative as a matter of law. Critically, the court analyzed how a reasonable observer would perceive these paintings, rather than relying solely on Prince’s deposition statements that he was not attempting to infuse the works with a new message. For the remaining five paintings, which had more “minimal alterations” and “present[ed] closer questions,” the Second Circuit remanded to the district court for its assessments based on application of the correct fair use analysis.

In a partial dissent, Judge Wallace noted that he “agree[d] with the bulk of the majority decision as to the law,” but that he would have remanded the case for reconsideration of all thirty paintings, and that he would not discount Prince’s statements about the purpose of the paintings.