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International Edition
May 23, 2013 Last Updated: 8:15:AM EDT

Handicapping Cariou v. Prince: 4 Possible Outcomes for the Landmark Appropriation Art Lawsuit

English

Handicapping Cariou v. Prince: 4 Possible Outcomes for the Landmark Appropriation Art Lawsuit

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Left: A photo by Patrick Cariou / Right: One of Richard Prince's “Canal Zone” collages
by Rachel Corbett
Published: August 29, 2012

Rumors have been swirling that judges in the Patrick Cariou v. Richard Prince copyright lawsuit are nearing a decision. But while the outcome of the ongoing appeal has been eagerly anticipated on both sides, there’s a good chance the answer won’t be a simple “guilty” or “not guilty” for Prince. Instead, legal experts expect the judgment to fall somewhere in between, or perhaps even branch off into dozens of rulings — one for each painting in the contested series.

Last year, U.S. district court judge Deborah Batts sent shock waves through the art world when she ruled that Prince’s “Canal Zone” collages, which incorporate photographs from Cariou’s book, “Yes, Rasta,” infringed on the photographer’s copyright. Batts wrote that Prince didn’t meet the four standards of the fair use principle, and that ultimately the paintings — some of which are worth more than $10 million — could be destroyed.

 

Whatever the outcome of Prince’s appeal, that penalty doesn’t seem likely to stand. In May, one of the three appellate court judges, Barrington Parker, compared the injunction to “something that would appeal to, you know, Huns or the Taliban.” In fact, according to Columbia University law professor Philippa Loengard, it’s “very unlikely” that the judges will uphold the lower court’s decision in its entirety. “I would bet millions that’s not going to happen,” she told ARTINFO.

So, we asked Loengard, what are the other possible scenarios?

PRINCE WINS: For Prince and his lawyers to score a home run, the judges would need to follow the fair use test applied in the 2005 Blanch v. Koons case, in which Jeff Koons argued that he sufficiently altered the meaning of a Gucci advertisement photographed by Andrea Blanch by taking only the legs of one of four women pictured and inverting them in his composition. This fair use precedent would lead the judges to determine that Prince’s paintings are transformative and that the markets for the two artists are so disparate that Prince didn’t cause Cariou any financial harm. So far, the current judges “don’t seem to think there was market harm, that they weren’t really competitors, so this factor really sways toward Prince,” Loengard said. “But I still think there will be an infringement.”

SHADES OF GRAY: A more likely scenario is that the judges will go through each work one by one and determine whether or not it qualifies for fair use, meaning some of the works will probably pass and those that don’t will head to a damages hearing. As one appellate judge already pointed out during the oral arguments, “it strikes me that there are a substantial number — by my count 10 — that would not qualify as transforming.”

SEND IN THE JURY: Of course, if the judges don’t feel like analyzing and writing reports on all 21 pictures, or they feel they’re not qualified to do so, they could send the task to a jury. It’s impossible to predict what a group of laymen would decide, but Loengard thinks that this could be a risk for Prince, “since juries tend to like the underdog.”

BACK TO BATTS: The judges could also send the case back to Batts, the lower court judge. If they find that she applied the wrong test in her decision — at issue is whether or not an appropriation artist is required to comment on or criticize the original work — they could tell her she needs to go back and reevaluate the pictures.

In other words, the debate is likely to only get louder once a decision is reached. And if the judges come down strongly in favor of one side or another, one can bet that the appeals will continue — possibly all the way to the Supreme Court.

“There are so many sides that have a stake and are interested in this, especially on the Prince side,” Loengard said, referencing the Andy Warhol Foundation, Google, Getty, and the many other parties who filed amicus briefs to the appeals court. “So there would be a lot of momentum to take it to the Supreme Court.” It may be a long shot, but considering the noise this case has made already, we wouldn’t be surprised.

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Market News, Prince v. Cariou, Richard Prince, Patrick Cariou, Fotografie, Appropriation art
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