This week a federal appeals court declared that Richard Prince can contest the decision against him in a thorny copyright infringement case won by French photographer Patrick Cariou in March. Prince was found guilty of violating copyright laws to make "Canal Zone," for which he appropriated 41 photographs of Jamaican Rastafarians taken by Cariou, collaging other images on top of them and applying brushy paint strokes in the style of Willem de Kooning. Judge Deborah A. Batts ruled that Prince's use of the images was not sufficiently transformative to constitute fair use.
In its decision to allow Prince's appeal, the U.S. Court of Appeals for the second circuit wrote that questions raised by the case remain "a continuing controversy capable of redress by this court," the New York Times reports. This wording may indicate a disagreement with the original ruling, which many art-world observers worried could have a chilling effect on the work of appropriation artists and the galleries that represent them. The judge's decision made it illegal to sell or publicly exhibit any images from "Canal Zone," and she ordered that any unsold paintings from the series be impounded. The Gagosian Gallery, which mounted a show of "Canal Zone" and sold several of the paintings for over $10 million apiece (later having to send a letter to inform the collectors that the art they purchased was illegal), was also a defendant in the suit.
Another factor in the original decision was Cariou's claim that he had been financially harmed by Prince's use of his work. New York gallerist Christiane Celle testified that she had canceled a planned show of Cariou's Rastafarian images after learning of the Prince show at Gagosian because she didn't want to exhibit work that had already been seen at another gallery.
In an interview with ARTINFO's Andrew M. Goldstein after his court victory in March, Cariou acknowledged that the meaning of "transformative" was hard to grasp, but said that it comes down to the fact that "it has to be transformed for a purpose." "You can comment on the original work, or you don't copy it, or you get a license," Cariou said. "It's a really simple thing." Now that the appeals court is open to hearing the case, however, it remains to be seen just how simple — or how complicated — this matter is.