This is a blog post I wrote for my law firm art law blog. You can get it in on the art law team blog or read it below.
In 2000, a photographer named Patrick Cariou came out with a book of photographs he took during the 6 years when he lived with the Rastafarians in Jamaica. In 2007, Richard Prince, along with his dealer, Gagosian Gallery, began exhibiting a series of collages that featured 41 photographs from Cariou’s book. Cariou sued Prince and Gagosian for copyright infringement. Prince and Gagosian claimed fair use. Fair use is a frequently used excuse to infringement. Basically, the fair use defense says this: Even though I borrowed your copyrighted work, it was fair use, so it wasn’t infringement.
But, what is Fair Use?
Fair Use is the freedom to copy someone else’s copyrighted work to comment on or criticize it or to parody it.
Four Questions of Fair Use
Fair Use is a narrow defense, which has no bright line. Instead, you have to ask several questions to decide if copyright use is not infringement because it is fair use. Here are the questions:
- What was the purpose and character of the use?
- What was the nature of the original copyrighted work?
- What was the amount and substantiality of the portion used?
- What was the effect on the market for the original copyright?
PRINCE & THE FOUR QUESTIONS
The court in the Prince case took these four questions and applied them to Prince’s use. Let’s take them one by one.
- Purpose and character of the work. The purpose and character question seeks to identify how the defendant used the work. Did he transform it to make a statement or did he really just convert it to a commercial product for financial gain.Prince’s use would have tilted towards fair use, and away from infringement, if he had either transformed the portion he used to comment on Cariou’s original work or just not used the portion for very commercial purposes. This factor didn’t go well for Mr. Prince.Prince admitted that he had not commented on the work, being indifferent to the meaning of the original. And, the work in Prince’s hands was so commercial it was lucrative. Specifically, Gagosian sold eight works for $10.5 million, which was split 60/40 between the artist and the gallery. Gagosian also traded paintings for art work valued at $6-8 million.
- Nature of Copyrighted Work. The nature of the copyrighted work really looks at the quality and strength of the copyright in the original work.Here, Prince’s use would have tilted towards fair use if the Cariou’s copyright was weak. And, in spite of Prince’s claim that Cariou’s photographs were as original as the phone book, the court said,Unfortunately for defendants, it has been a matter of settled law for well over 100 years that creative photographs are worthy of copyright protection. found the judge.
- Amount and Substance Used. The amount and substance used looks at how much the defendant used – was it just enough to make his point or did he take more than he needed (or the whole thing).Prince’s use would have tilted towards fair use if he had borrowed just a smidge of Cariou’s images or no more than necessary to make his point. However, here Prince borrowed the central figures of Cariou’s photographs, taking “the very heart of his work.”
- Harm to Original Owner’s Market. Harm to the original owner’s market looks for signs that the defendant’s use of the work hurt the original owner in his native or predictable market.Prince’s use would have tilted towards fair use if the market for his works was vastly different than Cariou’s. Prince argued that there was no market to harm, since he was more aggressive as a marketer. The Judge rejected that. In fact, one gallery actually canceled an exhibition of Cariou’s images to avoid being perceived as capitalizing on Richard Prince’s fame.
THE VERDICT AND THE PAIN
The federal district court in NYC rejected the fair use defense and awarded Cariou an overwhelming victory. Actually, Cariou crushed Prince and Gagosian. First, the verdict was in summary judgment – it never even got to trial. Second, the court found that Prince infringed Cariou in “bad faith,” based on Prince’s request to his assistant to go buy extra copies of Cariou’s books but not to ask Cariou for a license to use the contents. Bad faith infringement ought to entitle Cariou to huge damages. The actual money damages are to be determined.But the judge didn’t stop just with money; the judge imposed a measure of humiliation. Prince and Gagosian were ordered to deliver all copies and editions of the paintings to the court for destruction. And, Prince and Gagosian must even write all owners that the works infringe Cariou’s copyright, “were not lawfully made under the Copyright Act of 1976, and that the paintings cannot be lawfully displayed.”
THE MORAL OF THE STORY
Fair use is narrow. Sometimes the good guy wins.