Patrick Cariou, after winning his copyright claim against Richard Prince in the District Court in 2011, suffered a stinging reversal earlier this year when the Second Circuit found in Prince’s favor as to his use of Cariou’s Yes, Rasta series in the Prince Canal Zone collages. The Second Circuit decision has been widely derided by copyright analysts, who apart from the relative merits of Cariou vs. Prince found the decision unclear as guidance to future artists and copyright holders. For the Art Law Report’s coverage of the case, click here.
Cariou has now asked the Supreme Court to reverse the Second Circuit. Odds of the high court taking any case are always long, but Cariou frames the question like this:
“The Second Circuit majority’s ‘I know it when I see it’ approach, should it become widely adopted, risks tilting that balance against copyright owners (particularly photographers who may not have aggressively marketed their easily-copied digitized works). . . .”
Given the contrasting clarity of the Ninth Circuit’s recent decision in favor of Green Day, perhaps the Court will see an opportunity to speak to fair use in a way that it hasn’t snice 2 Live Crew covered Roy Orbison’s “Pretty Woman” and Campbell v. Acuff Rose Music, Inc. set the bar more than twenty years ago.