Answer: No, it’s NOT Fair Use!

(If you didn’t come here from the Blog, you can read the first part of this post here.)

The decision is from Cariou v. Prince, the notorious Yes, Rasta case. (Where Cariou is the aggrieved photographer, Prince the “appropriation artist.”) From everything I’ve read about it–and A LOT has been written about it (such as this pro-Prince piece)–I expected it to be poorly written and poorly reasoned. But, really, it’s about as good a fair-use decision as you’ll find. It’s not the judge’s fault that the law of fair use defies any human attempt to understand it. The court based her decision on the following findings:

  1. The collages did not comment on the photographs themselves; therefore, they did not make a “transformative use” of the photographs. (This issue was the subject of the appeal. See the important update below.)  The court relied most heavily on Prince’s own testimony as to his intent in creating the collages.
  2. The collages were commercial in nature.  They were consistently offered for sale, and in fact, were sold for millions of dollars.
  3. Prince acted in bad faith because he didn’t contact the photographer to inquire about licensing.
  4. The photographs were highly expressive, even though they depicted actual persons in their normal contexts.  The judge seems to have been persuaded by Cariou’s own testimony about the artistic decisions that went into taking each photograph.
  5. Prince used entire photographs or the central elements of the photographs.
  6. Cariou lost an opportunity to exhibit his works as a direct result of the artist’s exhibit.

The sixth finding is extraordinary–almost incredible–and practically guarantees the result. (But see the important update below!) You almost never see a direct effect of infringement on the market for the original work. Bear in mind that the photographs are about seven years older than the collages. What are the odds that Cariou would choose to exhibit his photographs at the same time and in the same city that Prince was exhibiting his collages? I re-read this portion of the opinion, and it appears that the owner of the other gallery really did testify under oath that she dropped the photographer’s show because she didn’t want to appear derivative of the artist’s show. I suppose the world of high-end New York art galleries is fairly small, and I could see that being derivative would be embarrassing among that group.

To make things more interesting, let’s ignore the sixth finding.  Would the judge still find no fair use?  It’s pretty clear she still would. If you read the judge’s treatment of the “transformational use” question, you can tell she’s not buying it. What’s a bit disturbing is how much she relies on the artist’s own testimony. He makes no attempt at all to describe his works as commentaries on the materials he “appropriates.” Is the main difference between Prince and Koons that Koons was able to B.S. an convincing explanation for how his painting commented on materialism and commercialization, why he just had to use exactly the photographer’s images? It seems to me that fair use shouldn’t depend on an artist’s ability to articulate what she was trying to do with her art.

* I assume that Prince’s lawyers were begging him to come up with a similar explanation, so I further assume that Prince refused. I speculate that he refused on artistic principle. He is proudly an “appropriation artist,” and one sense that he believes appropriation is always artistically valid and, therefore, should always be legally valid. If so, he made the case awfully easy for the judge. (Alternatively, it might be that Prince’s lawyers never believed his works needed to comment on Cariou’s to be transformative. See the important update below.)

What if Prince honestly believed he was commenting on Cariou’s photographs but he was just inarticulate? Should a fair-use determination come down to that? But let’s say we cut out artistic intent. How would we go about determining transformational use when it is not immediately apparent on the surface? Bring in art professors as experts?

Enough picking on fair use.* It’s like picking on a snail because it’s slow. Fair use isn’t meant to make sense or be easy to apply. It is a necessary safety valve, a kludgy way of recognizing an artist’s debt to the very culture from which her works arise. It’s too bad the artist can’t repay the debt in ways other than giving up her rights (at least in the one instance).  Without the original “Oh Pretty Woman,” there wouldn’t have been a market for a parody, but yet, maybe we needed to be reminded that not everything is “wine and roses” between the sexes. Should the copyright holder be the one to pay for that lesson?  These questions are impossible to answer in any meaningful way.

* A couple of arguments that fair use ought to just be abolished may be found here and here.

I guess the lesson here is that fair use is like art: you can’t define it, but you know it when you see it, and your friends will think you’re crazy.

Important Update: This decision was appealed, and the appellate court read the record rather differently than the district court, especially about the cancelled exhibit. Also, the district court might have conflated two similar fair-use principles (something I overlooked in my analysis above). Play Is it Fair Use? Appellate Edition!

Thanks for reading!

Rick Sanders

Rick is an intellectual-property litigator. He handles lawsuits, arbitrations, emergency injunctions and temporary restraining orders, opposition and cancellation proceedings, uniform dispute resolution proceedings (UDRPs), pre-litigation counseling, litigation avoidance, and other disputes, relating to copyrights, trademarks, trade secrets, domain names, technology and intellectual-property licenses, and various privacy rights. He has taught Copyright Law at Vanderbilt University Law School. He co-founded Aaron | Sanders with Tara Aaron-Stelluto in 2011.