The Docket - Case No. 17
Thirty paintings, twenty-five transformed, one settlement
A photographer won everything at summary judgment, then watched an appeals court redraw the fair-use line underneath him, and the five paintings left standing were settled before anyone saw them again.
Patrick Cariou spent six years living among Rastafarians in Jamaica and published the photographs as 'Yes Rasta' in 2000. Richard Prince bought copies of the book, cut the photographs into his 'Canal Zone' collage paintings, and showed them at Gagosian. On March 18, 2011, a federal judge gave Cariou everything: summary judgment, an injunction, and an order to hand over the unsold works for destruction or disposition.
On April 25, 2013, the Second Circuit took almost all of it back. Twenty-five of the thirty works were transformative fair use, the court said, and the other five would be reconsidered. The parties settled before anyone reconsidered anything.
What the papers say
Cariou, a French photographer, published 'Yes Rasta' with PowerHouse Books in 2000: classical portrait and landscape photographs from his years in Jamaica. Between December 2007 and February 2008, Prince showed a preview collage at the Eden Rock hotel in St. Barths. In June 2008, Prince bought three more copies of 'Yes Rasta' and created thirty additional 'Canal Zone' paintings and collages, twenty-nine of which incorporated whole or partial 'Yes Rasta' photographs. Gagosian showed twenty-two of the works from November 8 to December 20, 2008, and also published an exhibition catalog.
Cariou sued on December 30, 2008, for copyright infringement under 17 U.S.C. sections 106 and 501. Prince and Gagosian raised fair use. (A small counting quirk in the record: the district court counted twenty-nine works at issue, but there were actually thirty.)
The money
The Second Circuit's opinion supplies the book's numbers: 7,000 copies printed in a single printing, 5,791 sold as of January 2010, more than 60 percent of them below the $60 retail price, and PowerHouse paid Cariou just over $8,000. Contemporary legal press put the 'Canal Zone' sales at approximately $10 million.
No damages figure was ever entered. The district court ordered an injunction and impoundment but never reached a damages determination, and the case settled before the remanded fair-use question was decided. The opinions and court records do not publish either side's legal bills, so no fee figures appear here.
The ruling
The district court's rule: fair use requires the new work to 'comment on, relate to the historical context of, or critically refer back to' the original. Prince's testimony that he was uninterested in Cariou's original intent proved fatal to his defense.
The Second Circuit's answer, in an opinion by Judge Parker joined by Judge Hall, with Judge Wallace concurring in part and dissenting in part: the law 'imposes no requirement that a work comment on the original or its author in order to be considered transformative.' The correct test is how the artworks 'may reasonably be perceived.' Twenty-five of the thirty works were transformative fair use as a matter of law, their composition, presentation, scale, color palette, media, and expressive nature fundamentally different and new. The five minimally altered works were remanded, including 'Graduation,' which did little more than paint blue lozenges over the subject's eyes and mouth and paste a picture of a guitar over the subject's body. The judgment was reversed in part, vacated in part, and remanded.
Cariou's petition for certiorari was denied. On March 18, 2014, the parties settled before the district court reheard the five remanded works. The settlement terms were not publicly disclosed.
The risk ledger
The case ran from December 2008 to March 2014: more than five years. This is the cost-of-being-right case from the plaintiff's side: Cariou won total victory at the district court, summary judgment, an injunction, a destruction order, and then lost it on appeal except for five works, then settled the remaining five before the remand was ever heard, after the Supreme Court declined to take the case. Prince and Gagosian were represented by Boies Schiller and Withers Bergman; Cariou by Schnader Harrison.
The opinions do not publish either side's legal bills, so this article will not invent one. What the docket shows is a photographer who won everything and ended up settling the leftovers, and an appropriation artist who lost everything and kept twenty-five paintings.
The meter runs whether you win or lose. Sit with that.
The coverage lens
This is the exact class of allegation that media liability coverage is built for: a photographer whose published work is appropriated into someone else's creative product, with fair use as the hinge the whole fight turns on. Cariou won at summary judgment and still spent five more years in court before settling. Defense costs are a central part of what the coverage line addresses, and the defense bill is the certain bill in every case like this one. It arrives for winners and losers alike, years before anyone knows who won.
No promises here. Whether any particular claim would be covered depends on the policy as issued, its terms, conditions, limitations, and exclusions, and the facts of the claim. But the category exists because of cases like this.
The docket
- Second Circuit opinion, 714 F.3d 694 (Justia): law.justia.com
- Second Circuit opinion (PDF): cases.justia.com
- District court opinion, 784 F. Supp. 2d 337 (S.D.N.Y. 2011): cited by reporter (no court-hosted full text located)
- Certiorari denied: 134 S. Ct. 618 (2013)
Sources
- District court opinion, Cariou v. Prince, 784 F. Supp. 2d 337 (S.D.N.Y. 2011) — cited by reporter
- Second Circuit opinion, Cariou v. Prince, 714 F.3d 694 (2d Cir. 2013): law.justia.com
- Certiorari denied, 134 S. Ct. 618 (2013) — cited by reporter
- Settlement date of March 18, 2014 is press-reported (NYT ArtsBeat); the settlement terms were not publicly disclosed
Legal disclosure
SongSure LLC is an insurance agency. This article is for general information and education only. It is not legal advice, not insurance advice, and not an offer, quote, or promise of coverage. Case summaries are based on publicly available court records and are simplified; they may omit details. Any coverage would be subject to underwriting review, carrier approval, and the terms, conditions, limitations, and exclusions of the policy as issued. Past case outcomes do not predict future results or coverage decisions. SongSure is in pre-launch and is not currently writing coverage. Consult a licensed attorney for legal questions and a licensed insurance producer for coverage questions.