In a closely watched copyright infringement suit, the U.S. Court of Appeals for the Second Circuit ruled that an artist’s use of photographs in a series of collages and paintings were transformative and therefore constituted fair use.

Patrick Cariou, a photographer, published a book of landscapes and classical portraits called Yes Rasta after spending six years living with Rastafarians in Jamaica. Richard Prince, a well-known “appropriation artist,” used the photographs in a series of collages and paintings called Canal Zone.

In one collage, Prince tore 35 photographs out of the book and painted “lozenges” over the subjects’ facial features, using only portions of some of the images. In other pieces, Prince enlarged or tinted photographs or incorporated photos from other artists in addition to Cariou.

When Cariou sued for copyright infringement, Prince raised a defense of fair use. A federal court judge disagreed, ruling that Prince’s work was not transformative because it did not “comment on, relate to the historical context of, or critically refer back to the original works.” She granted summary judgment to Cariou and ordered that Prince transfer the infringing works to Cariou to destroy.

While the 2nd Circuit appeal panel noted that many types of fair use – most notably satire and parody – invariably comment on an original work or popular culture, such commentary is not required to establish that a secondary work is transformative.

“The law imposes no requirement that a work comment on the original or its author in order to be considered transformative, and a secondary work may constitute a fair use even if it serves some purpose other than those (criticism, comment, news reporting, teaching, scholarship, and research) identified in the preamble to the statute,” the court said. “Instead…to qualify as a fair use, a new work generally must alter the original with ‘new expression, meaning, or message.’”

Twenty-five of Prince’s works satisfy that requirement, the court held, and “manifest an entirely different aesthetic from Cariou’s photographs. Where Cariou’s serene and deliberately composed portraits and landscape photographs depict the natural beauty of Rastafarians and their surrounding environs, Prince’s crude and jarring works, on the other hand, are hectic and provocative.” The photographs and the secondary work also differed in “composition, presentation, scale, color palette, and media,” the panel added.

On the other hand, the 2nd Circuit did find that five of Prince’s works so minimally altered Cariou’s pictures that they might not be considered fair use and remanded the case to the district court for a determination of whether the works “present a ‘new expression, meaning, or message.’”

In a partial concurring and dissenting opinion, Judge J. Clifford Wallace (sitting by designation from the 9th Circuit) agreed with the majority about the legal standard for transformative works. But he suggested the court should have remanded all of the artworks for consideration by the district court.

“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 between the twenty-five works that it has identified as constituting fair use and the five works that do not readily lend themselves to a fair use determination,” he wrote.

To read the decision in Cariou v. Prince, click here.

Why it matters: The 2nd Circuit’s decision establishes that a secondary work does not need to comment on the original artist or work or popular culture to be transformative for purposes of a fair use defense. “Prince’s work could be transformative even without commenting on Cariou’s work or on culture, and even without Prince’s stated intention to do so,” the panel explained. “We instead examine how the artworks may ‘reasonably be perceived’ in order to assess their transformative nature,” the panel explained. The court did caution that secondary works could modify originals without being transformative, however, using the example of a book of synopses of television shows.