DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, DECISION OF 18 MARCH, CARIOU V. PRINCE ET AL., 08 CIV. 11327; DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA, DECISION OF 27 MAY 2011, FRIEDMAN V. GUETTA, CV 10-00014

In two decisions issued within the past few months – one in New York and one in California – artists engaged in “appropriation art” were held to have violated the U.S. Copyright Act by incorporating others’ copyrighted photographs into their own artworks. Both judges rejected the defendants’ fair use defenses, including the argument from one defendant that appropriation art is per se fair use, and took a traditional case-specific approach to find that the appropriation artists had stepped over the line into territory reserved for the copyright owners.

The use at issue in Cariou involved Richard Prince’s inclusion of over three dozen photographs of Rastafarians in Jamaica, photographed by Patrick Cariou and published in a book entitled Yes, Rasta, in several collage-based paintings.

Click here to see Patrick Cariou's photograph.

Clcik here to see Richard Prince's painting.

The use at issue in Friedman consisted of the use by Thierry Guetta a/k/a Mr. Brainwash (the subject of the Academy Award-nominated documentary Exit Through The Gift Shop) in incorporating Glen Friedman’s photograph – which Guetta had obtained from the Internet – of hip-hop group Run-DMC in four displayed artworks.

Click here to see Glen Friedman's photograph.

Click here to see Guetta's artwork.

After relying on the same Supreme Court case, Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1884), to find that the photographs were protectable works under copyright law, both courts focused their analyses on the question of whether the defendant’s use was a “fair use” in each case. (The Friedman court, however, stopped first to conduct an analysis of whether the works were “substantially similar” and thus infringing. The court found that they were substantially similar – even with respect to the works that had included versions of the photograph that Guetta had digitally modified.)

In the United States, fair use is an affirmative defense codified by statute as Section 107 of the 1976 Copyright Act, 17 U.S. Code, and contains four non-exclusive factors for the court to consider and balance. Two of these have been given greater importance as courts have applied the factors over time: the first factor – the purpose and character of the use, including whether the use is commercial or non-commercial; and the fourth factor – the effect of the use on the potential market for or value of the copyrighted work. As a further result of judicial precedent, the question of whether the use is “transformative” is now held as central to the analysis of the first factor.

In this context, the Cariou court, in rejecting the invitation to hold all appropriation art as per se fair use, held that Prince’s use of the photographs in all of the works at issue failed the first factor because it did not comment on the photographs, Cariou or anything associated with either the photographs or the plaintiff. In fact, Prince testified that he didn’t “really have a message” at all. The court also held that the millions earned from sales of the paintings and of catalogues containing some of them, made the use commercial. On the same factor, the court further held that Prince and the gallery acted in bad faith by failing to seek permission to use the photographs. In assessing the fourth factor, the court rejected Prince’s arguments that Cariou engaged in minimal marketing of his works, noting specifically that a gallery slated to exhibit Cariou’s works cancelled the exhibition after hearing about Prince’s own exhibition of works using the photographs.

Similarly, the Friedman court found that Guetta’s uses of the Run-DMC photograph had no transformative message and competed with Friedman’s opportunities to sell his own copies of the photograph.

What happens in these cases is worth watching, as the principles of these decisions may not merely be limited to the pop artists of the world. In an era where an advertisement, fabric pattern, printed publication, poster, photograph – or even a song – may incorporate a component of another’s work, a plaintiff may rely on these rulings, particularly if affirmed, as the response to “art for art’s sake.”