A recent Second Circuit court decision appears to establish a
broad fair use exception for the use of artistic works in new
works. However, a careful look at the case — and
especially at the examples which the court considered too close to
call as a matter of law — could leave artists feeling
confused about just how broad the exception really is.
The case of Cariou v. Prince
involved several photographs by Patrick Cariou. Cariou published his
photographs in a book entitled Yes Rasta. Artist Richard Prince altered
and incorporated 25 of Cariou's photos into various paintings
and collages. Prince displayed his works in various exhibitions,
and he also sold reproductions of a few of them.
Cariou sued Prince for copyright infringement, and the district
court originally ruled in favor of Cariou. However, on appeal the
Second Circuit reversed the lower court's decision on 20 of the
images, and it remanded the case for further consideration on the
remaining five images.
In its discussion, the Court listed the four factors for
considering whether a particular use of a copyright is
"fair." The Court focused on the element of "purpose
and character of the use" and examined prior caselaw relating
to "transformative" works, which "lie at the heart
of the fair use doctrine's guarantee of breathing space."
It noted that prior Second Circuit decisions found a transformative
work to be one that transforms the original "in the creation
of new information, new aesthetics, new insights and
In this case, the Court found most of Prince's works to be
transformative for several reasons, including:
Cariou's original photos were "serene and deliberately
composed; Prince's modifications were "crude and jarring .
. . hectic and provocative."
Cariou's works were in black-and-white, printed in a
9-1/2″ x 12″ book; Prince's modifications added
color, and increased sizes at least tenfold.
The Court found that Prince's modifications gave the 20
images a "new expression" and "new aesthetics."
The Court also considered other fair use factors, such as the
effect of the use on the potential market, and found no significant
adverse impact on Cariou's market.
However, the Court was careful to issue cautionary words about
broad interpretations of its ruling:
Our conclusion should not be taken to suggest, however, that
any cosmetic changes to the photographs would necessarily
constitute fair use. A secondary work may modify the original
without being transformative. For example, a derivative work
that merely presents the same material but in a new form, such as a
book or synopses of a television show, is not
Despite that setup, the Court did not establish a bright line
test to help explain when a work moves out of the realm of being
merely derivative and into the realm of being transformative.
Indeed, the Court's instruction to remand the decision on
five of the images back to the district court, rather than simply
reverse the decision on all 25 images, provides little guidance for
situations that could be close calls.
An example of one of those remanded as "too close to
call" is Prince's image entitled Graduation,
reproduced above alongside an image of the Cariou's original.
Here, the Court discussed Prince's addition of a guitar,
larger hands, obscured facial features and blue tint. Despite
finding Cariou's original photo as "serene" and
Prince's image as creating a "sense of discomfort,"
the Court stated that that "we cannot say for sure whether
Graduation constitutes fair use or whether Prince has
transformed Cariou's work enough to make it
Thus, while the decision may provide some comfort for many
artists who truly transform underlying artistic works, it may leave
other artists struggling to understand exactly how much
"transformation" is needed to be
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about your specific circumstances.
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On May 19, 2016, Robert Bahr, Deputy Commissioner for Patent Examination Policy of the U.S. PTO sent a memorandum to the Patent Examining Corps that discusses the recent decisions issued by the U.S. Court of Appeals for the Federal Circuit.
The Ninth Circuit recently affirmed a ruling by the Central District of California that the First Amendment barred a right of publicity suit brought by an individual who alleged that he was portrayed, without his permission...
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