Does painting blots over the eyes of a photograph turn it into something new? That's one of the questions that a US district court was asked to consider last week, leading to a surprising decision about when artists can use copyrighted work. The issue was whether "appropriation artist" Richard Prince was fairly repurposing images from Yes Rasta, a 2000 book documenting photographer Patrick Cariou's time with Rastafarians in Jamaica. While a previous court case found that his work was copyright infringement, the Second Circuit Court of appeals overturned their decision, even though Prince wasn't commenting on the photographs involved — one of the tests that has long helped determine what's legal.
Fair use is what allows everything from parody songs to Google Image Search thumbnails — it's the exception that lets copyrighted work start a conversation or lead to something new. But determining what qualifies is complicated. One of the biggest questions is whether the new piece is "transformative," creating something that serves a different purpose or expresses a counterpoint to the original. For creative works, this often means deciding whether the example in question comments on or critiques the thing it's drawing from. 2 Live Crew's parody of Roy Orbison's "Pretty Woman," for example, was found to be fair use because it mocked the romantic tone of Orbison's song.
"The message is to make great art that makes people feel good."
Prince, though, never described his work as responding to Cariou's. His decade-spanning career has been based on "re-photographing" or otherwise pulling images from advertisements, book covers, or magazine photos. "The message is to make great art that makes people feel good," he said in a deposition quoted by The New York Times, not to comment on Cariou's photographs. In some cases, small pieces of the original images were worked into larger collages, but others involved relatively minimal changes. Graduation, shown above on the right, adds a guitar and places blue spots atop the subject's eyes and mouth.
In an earlier court decision, the judge decided that Prince's use of the 30 photographs was copyright infringement, largely because the new work didn't critique or call back to Cariou's pieces. Prince was ordered to destroy any remaining copies of either them or a related art book. But the Second Circuit Court of Appeals disagreed, saying that 25 of the photos were in the clear. Why? They presented an "entirely different aesthetic" from Cariou's photographs.
Prince's work wasn't a commentary, but it presented an 'entirely different aesthetic'
"Where Cariou's serene and deliberately composed portraits and landscape photographs depict the natural beauty of Rastafarians and their surrounding environs," writes Judge Barrington Parker, "Prince's crude and jarring works, on the other hand, are hectic and provocative." While commenting on a work might make something fair use, says Parker, it's not necessary, and Prince created something new simply by departing radically from the original. Because of this, the court also found that they weren't likely to reduce demand for the original work, another pillar of fair use law: "Prince's work appeals to an entirely different sort of collector than Cariou's."
Not everything, though, was found to be fair use. Five works, including Graduation, weren't explicitly cleared; instead, they were sent back to the lower court for a final decision. Parker wrote that in some pieces, "Prince did not alter the source photograph very much at all" and copied the entirety of it, making the argument for them weaker than for collages where Cariou's work was almost unrecognizable.
Since fair use is determined on a case-by-case basis, Prince's victory doesn't directly translate to new intellectual property policy, but instead provides guideposts for future decisions. Essentially, it bolsters the legal argument that simply remixing a work can turn it into something that transcends its original. "Prince used key portions of certain of Cariou's photographs," writes Parker. "In doing that, however [...] Prince transformed those photographs into something new and different."
If Prince's work is fair use, it's not just that he's free to make and sell it; it also means that Cariou doesn't have any claim on it. He can't demand compensation or ask that his work be credited — in his lawsuit, he claims that his Yes Rasta photographs were passed up for an exhibition partly because Prince's far more famous versions (some of which sold for $2 million or more) had already been shown. In some ways, this case is an echo of Glee's "Baby Got Back" cover: copyright shouldn't be used as a cudgel to enforce etiquette or fairness, but looser rules don't automatically mean a win for the underdog.