Come Be An Armchair Juror
Will Justice Be Served?
To see how your fellow "jurors" voted in the polls, click "See how others voted" on the polls in this hub.
As writers, I hope you will enjoy this first hub about Copyright Infringement. I appreciate any feedback you can give me on whether or not you like this premise. TY
Not Your Hometown Jury Duty
Whether you have loved or hated serving on jury duty, this series of hubs might appeal to you since you'll never have to leave the comfort of your home or your computer.
I hope you'll enjoy my new "interactive" series of hubs featuring real court cases where you get to be an armchair juror and voice your opinion using polls and comments. There will be no surprises or twists added at the last minute nor will this hub be edited after it is published. If there are future developments due to appeals or overturned decisions, an updated footnote will be added in a separate text capsule.
You will be given the complete case as it was presented in the "real" case - the facts, the evidence, the exhibits, the summaries of the arguments by both sides, the verdict (including the prison sentence, if any) and any appeals.
The only twist is you will have open access to public reaction via comments on news stories when you click on links along the way pointing you to the actual case. The links originally were included to verify my reporting and so you can read some background information of the case before, during and after the decisions, but I think the comments under some of the news articles might be helpful to you to know what the public was thinking since this particular case went through a couple of appeals before the actual settlement. Some articles have comments disabled. Some require you to sign in on Facebook, Disqus, or Google.
You can always choose not to read the comments if you don't want to be influenced by public opinion. It is your choice - it's part of what makes this series of hubs truly interactive for the reader.
Please read this particular hub to the end, because some of the appeals reversed the previous decisions. This copyright infringement case had no jury by choice because the Plaintiff requested a summary judgment - where just the judge makes a decision.
However, if this case had gone to a jury, it would have been interesting to see how it would have turned out. I did comment on their website giving my opinion of these verdicts. I shared some of my comments in the Public Opinion part of this hub. I hope you will share your opinions through the poll votes and comments so we can have a good conversation on this very controversial topic.
The Basis For Bringing This Lawsuit of Copyright Infringement
Patrick Cariou, a professional photographer, is suing Richard Prince, a renowned appropriation artist, for using Cariou's photographs of Rastafarian natives (in both their original form and in various "altered" forms) for his two art shows, a companion photography book and two art show sales catalogue books.
Richard Prince put his copyright on all the works of art, did not ask Cariou's permission nor did he give author/photographer credit.
An appropriation artist (also known as a transformative artist) is someone who takes another artist's work of art (by purchase or infringing copying), makes changes to transform it in some way, then copyrights it to market it as his own.
Patrick Cariou's attorneys presented a number of exhibits to show that Richard Prince violated his copyright by using paint, copy and paste and/or by photo-shopping several of his subjects onto another canvas, and usurped his chances of selling his own work thus depriving him of income.
Take a look at the following exhibits 1 and 1A.
Exhibit 1 and 1A
Meet the artist, Patrick Cariou in native garb
The Rastafarian People as photographed by Patrick Cariou
2008: Patrick Cariou Files Case For Copyright Infringement
Copyright infringement definition: From the legal dictionary: A copyright gives the creator of a literary, artistic, musical, or other creative work the sole right to publish and sell that work. They have the right to control the reproduction of their work, including the right to receive payment for that reproduction, grant permission or sell those rights to others, including publishers or recording companies.
Copyright infringement can occur even if someone does not copy a work exactly. This example of copyright infringement is seen mostly in music and art. Copyright infringement occurs if the infringing work is “substantially similar” to the copyrighted work.
Patrick Cariou, a professional photographer, was given unprecedented access to the primitive Rastafarian people of Jamaica when they allowed him to live with them for six years in their native environment and photograph of their daily life. They trusted him to respect them, their religion and their culture, approving of the publication of his 2001 book entitled "Yes, Rasta." The book's title comes from a Rastafarian greeting.
Cariou is the sole copyright holder of these photographs (and the book) which was registered in the US Copyright Office in 2001. His copyright statement appears next to the title page of his book. The photographs never appeared in any other medium, website or print. Cariou holds the copyright to one other book on a non-related subject of photographs entitled "Surfers."
In early December 2008, Christiane Celle, a SoHo gallery owner in New York City, contacted Cariou about having an art show featuring his photographs from the previously published book "Surfers." When Cariou said no, because the book of those prints was going to be republished soon, the gallery owner then expressed interest in his "Yes, Rasta" photographs, proposing that his prints could be sold from $3,000 to $20,000 each. She also wanted to reprint his book as an art show edition (this is normal for a show) and have him do book signings at the show.
Patrick Cariou began negotiations to plan the show, hoping to sell 30 to 40 of his "Yes, Rasta" prints at her gallery. Besides publishing his book with the photographs and story of the Rastafarian people, Cariou had not marketed them up to this point because he was waiting for the right gallery to show his work.
Shortly after sealing the deal, Cristiane Celle learned the famous artist Richard Prince was having an art show titled "Canal Zone" which was appearing at the nearby Gagosian Gallery, in New York City, and featured about 30 of Patrick Cariou's "Yes, Rasta" prints.
She called Cariou back saying that she would not be interested in showing his "Yes, Rasta" work now because many of his prints were already being shown in Prince's show. She said she didn't want to horn in on Prince's successful art show by having another show with Cariou featuring the same or similar prints. In subsequent court documents, she admitted that she mistakenly believed Cariou had collaborated with Prince on his show at Gagosian Gallery.
Seeing his hopes of finally becoming a successful gallery artist hopelessly lost now, he sought legal counsel. On December 11, 2008, Cariou's lawyer sent a cease and desist letter to Richard Prince, informing him that he was not only violating Cariou's copyright, but that he never requested Cariou's permission to use or alter the prints, nor did he give him photo or author credit in his art show, show posters, or his photographic books.
Requesting permission is the acceptable practice when one wants to quote or in some way use copyrighted material.
The letter also stated that Prince could have requested email permission via a contact link on Cariou's website or through the publisher of "Yes, Rasta."
Richard Prince is a successful appropriation artist who is accustomed to using the photographs of other artists to create his art. Prince chose to ignore the cease and desist letter and did not seek permission at this point. He chose to continue with his art shows and sales.
Two weeks later, on December 30, 2008 Patrick Cariou's lawyers filed suit against Richard Prince, including the Gagosian gallery, the gallery's owner Larry Gagosian, who was also Prince's agent and art dealer, and also against Prince's catalogue publisher, Rizzoli Books alleging that Prince's "Canal Zone" works and art show catalogues infringed on his copyright. (Rizzoli Books was later dropped from the suit in 2010).
Besides being upset that Prince was infringing on his copyright, Cariou learned just before filing the lawsuit that Richard Prince had already made $10 million from a book of photographs titled "Canal Zone", from his 2007 art show in St. Barth's and from pre-sales from the 2008 art show.
Furthermore, Prince stood to make millions more from the sales from the December 2008 art show, as well as from the companion photography books, the after-show sales from the catalogs which were sent to thousands of wealthy and celebrity art patrons, not to mention a "Canal Zone" screenplay that was in development featuring Cariou's photographs and the Rastafarian backstory. (Source: Brooklyn Law Review, page 1534)
By 2008, Cariou's book "Yes, Rasta" was no longer printing large orders of his book to circulate in stores and art galleries. The publisher was now only printing copies on demand, that is, if and when customers ordered a book. As of December 2008, when he filed this lawsuit, Cariou had made about $8,000 on his book - a far cry from the income Prince enjoyed off Cariou's work.
Exhibit 2: Prince's "Canal Zone" collage with 35 of Cariou's photographs, some original, some painted
Exhibit 3: Man on donkey. Exhibit 3A: subjects photo-shopped into jungle scenery
If this happened to you ...
Meet the artist, Richard Prince
Click to enlarge: JD Salinger's The Catcher in the Rye with Richard Prince as "author"
Poll Question: Book Authors
Click to enlarge - Exhibit 4: Prince's Manipulation of Cariou's Work
Exhibit 5: Prince's rendering of several of Cariou's photos using Cariou's background setting
Exhibit 6: Prince's Collage of Cariou's photos, with some changes. Prince says he copyrighted the new work as his own
2008: Richard Prince Contends Fair Use in Copyright Infringement Lawsuit
The Rebuttal - When Prince was presented with the lawsuit notification, his attorney filed court documents contending Prince's transformative art work does not violate Cariou's copyright because his use of the art is considered "Fair Use."
In cases of "Fair Use," one does not have to ask permission of the author or artist.
Fair Use is copying or quoting a copyrighted material to use in a comment about it, to criticize it, (for example, in a newspaper column), or to make fun of it in a parody (for example, in a television sketch, a newspaper comic strip, etc).
Fair use requires "that the new work in some way comment on, relate to the historical context of, or critically refer back to the original work."
Fair Use is usually limited to a few lines of text, a paragraph or a summary. But generally, as long as your use in some way is needed to benefit the public or support your commentary, it is acceptable. Fair use in art and photography is determined on a case by case basis with each case weighed to determine if the type of use qualifies, and to make sure the use "does not deprive the copyright owner of income or livelihood."
Prince made millions; Cariou made $8,000.
Accepted definition of Transformative Art: The final result must be "something different, something new," that cannot resemble the original artist's work.
- Can you still see the original artist's work after Prince got done mutilating the photos with paint, etc.?
The court documents were rather confusing to understand because Prince and his attorneys were arguing his defense as both "Fair Use" (when the art can still be identified as the original art piece in many ways), and "Transformative Art" (where the art is something different, something new).
The Past Practice Defense - Provided by Richard Prince's attorney
Prince's attorney filed briefs with the rebuttal to say that since the 1970s, Prince's career of appropriating the work of other artists fell under "Fair Use." He has used countless photographs belonging to other artists, changed or altered them in some way (paint, photoshopping, mounting on frames), then presented them for sale as his expression of art, and has never been challenged on this use in the past. Because of the long standing acceptance of his practice, Prince feels he is within his rights to continue in this manner. Prince earns upwards of $500,000 to as much as $2 million per work of art.
Prince's attorney said that Prince has also taken the books of famous authors, put his own name on a new cover to replace the original author's name, and sold the result as a new work of art. Thereby, he called it "Fair Use" by way of Transformative Art because he designed the new cover for the books, even though he never wrote a word. (See photo at sidebar: the classic book "Catcher In The Rye" originally authored by J D Salinger).
As far as Patrick Cariou's 31 photographs are concerned, Prince says his "Transformative Art" is an example of "Fair Use" and meets the "Transformative Art" definition of "something different, something new."
Prince's attorneys reminded the court that Richard Prince's prestige and well-known name commands millions of dollars for his "transformative" artwork which hangs in the Guggenheim Museum in New York, the Whitney Museum, and San Francisco's Museum of Art, among other prestigious art institutions.
The rebuttal stated that in 2007 and 2008, Richard Prince had two art shows (one in St. Barth's in the West Indies & one in New York City, NY) entitled "Canal Zone" consisting of his transformative renderings of Cariou's paintings and collages.
Prince contends that he just "came across" a copy of Cariou's book in 2005 and ripped a total of 41 photographs out of the book and transformed 31 of them by nailing them onto pieces of plywood and painting over the facial features.(see Exhibits)
In court papers, Richard Prince states he earned over $10 million just from the 2007 and 2008 art shows which included advertising posters, pre-sale catalogues and two companion art show books. He continues to earn a handsome sum from his 2008 published book which you can view on Amazon here: "Canal Zone, Richard Prince, November 8-December 20, 2008, Gagosian Gallery, New York,"
Both parties asked for a summary judgment, which meant no trial, no jury. They said they both would accept the court's decision in this matter.
Up to this point ...
Note Of Explanation
The name "Canal Zone" may confuse readers as this case progresses, so here are the clear distinctions in how the name was used for the art show, the book, the art, and screenplay.
1. Richard Prince's "art piece" titled "Canal Zone" is one collage containing up to 31 of Cariou's photographs. The name of this one art piece is how most of Prince's activities in this case are referenced.
2. Prince's "art show" titled "Canal Zone" is the name given to the 2007 and 2008 art shows using the aforementioned collage as its centerpiece. The art show features a total of 41 "transformed" photographs belonging to Cariou. Of the 41 prints, 31 were included in the lawsuit because Cariou could prove they were his because they had minimal alterations, were glued onto other mediums (wood, posters) or were relatively unchanged from Cariou's prints.
For example, Prince painted a guitar onto one Rastafarian man and painted blue spots (called lozenges in the court documents) over faces and body parts of others. Prince explains the sporadic use of paint on the photographs as contemporary apocalyptic and rock music, the art show's theme.
3. Prince's "screenplay" is also named "Canal Zone" which uses Cariou's Rastafarian story as a backdrop for a rock music story.
4. Prince's 2008 published "book of photographs" is entitled "Canal Zone" which is a compilation of photos featuring the Canal Zone collage on the cover and the remainder of photos as Prince's own expression of art using Cariou's photographs. No other artist's work was used in the Canal Zone art except for Patrick Cariou's photos.
On March 18, 2011, Judge Deborah A Batts, United States District Justice for the Southern District of New York, presided over this hearing and viewed all the exhibits as a whole, not each exhibit individually. This would later be the basis for the Defendant, Richard Prince, to appeal her decision.
The Plaintiff, Patrick Cariou testified he was asking for a summary judgment in his favor on the grounds that Richard Prince had conspired against his rights by taking his copyrighted and watermarked photographs for commercial gain, altered his photographs, put his name on them as owner, included them in advertising for his shows and catalogues without permission or compensation. Prince deprived him of his livelihood, of showing his own work in art galleries and from earning a living from these photographs.
The Defendant, Richard Prince was seeking a ruling of "Fair Use" of the Plaintiff's copyrighted photographs and asking that Cariou's claim of "conspiracy to violate his rights" be denied, since he did not conspire to do so.
Prince testified at the hearing that Cariou's book of photographs of the Rastafarians, were a "mere compilation of facts … arranged with minimum creativity … [and were] therefore not even protectable" by or worthy of copyright. The judge dismissed this as his opinion.
Upon questioning from the judge, Prince admitted that he used Cariou's photographs as raw materials, and that he didn't particularly like them but intended to sell the transformed images for financial gain.
Referring to the electric guitar he added to one of the photographs, Prince said: "The guy plays the guitar now. It looks like he's always played the guitar, that's what my message was." The judge was not amused.
Prince's attorneys often reminded the judge of Prince's world renowned reputation and that his artwork commands millions of dollars in sales. The judge acknowledged at this point that the Court was well aware of Richard Prince's reputation in the art world for his practice of using photographs belonging to other people, which he then represents as his own copyrighted work.
This was a clear sign on which way the judge was leaning.
Citing past practice, Prince then testified that his art always included artwork belonging to other artists with his special rendering to transform them. He said he was not hurting Cariou's income by putting Cariou's photographs in his own widely popular book "Canal Zone." Instead, he said he did Cariou a favor and brought attention to him, as did this lawsuit, which he said would probably bring some sales for his print work.
In the end, Prince admitted to only using a total of 31 of Cariou's photographs for "Canal Zone" exhibits which Cariou's attorney refuted.
Prince testified he had no photographic skills and for over 30 years, he has relied on the work of other people to be able to create his artwork.
When the court questioned Prince about any additional photographs he might have in his possession, he testified he recently purchased 3 additional copies of Cariou's book "Yes, Rasta" saying he needed the photos to create 30 or more additional art works to get them ready to add to his three upcoming shows.
He also said he was completing movie studio negotiations for a screenplay he had written using the Rastafarian people as a backdrop.
Summary Judgment & Injunction
Judge Batts's decision:
- That Richard Prince's infringing use of Patrick Cariou's photographs was NOT fair use under the copyright law and that he was in violation of Cariou's copyright on only 26 of the 31 photographs.
- She cited the art gallery as a guilty party as well, saying that Prince and the gallery acted in bad faith by not asking permission to use Cariou's photographs and by not closing the art show or at least withdrawing the photographs from sale once Patrick Cariou had sent them a written cease and desist notice.
- She said that his exploitation and use of Cariou's photos were largely commercial - to make money. This, in turn, damaged Cariou's ability to make money from his own work, she said, citing the cancelling of an art show in a NY gallery.
- Prince did not create his art as a commentary on Cariou's original work; he was only using it as raw material.
- Using the above guitar photo as an example, proving that Cariou's photographs were still very recognizable through the minimal transforming, Judge Deborah Batts granted a summary judgment for Patrick Cariou's motion and rejected Prince's fair use defense.
- The count of "conspiracy" against Richard Prince was denied.
Judge Batts ruled that for a work to be "Fair Use," it must “in some way comment on, relate to the historical context of, or critically refer back to the original works.”
Of the remaining 5 photographs that Prince contends are "Fair Use," the decision was kicked to a lower court to allow them to hear the case and decide it.
For her part, Judge Batts had no doubt that the majority of prints violated Cariou's copyright.
- The court then imposed an injunction against Richard Prince that all infringing works, including newly purchased prints, as well as all Prince's finished works and works in progress, and books that had not yet been sold were to be delivered to Patrick Cariou so he could destroy, sell or otherwise dispose of them."
- Judge Batts also said Richard Prince must also notify in writing any current or future owners of the paintings to inform them that the works infringe on Patrick Cariou’s copyright, and “were not lawfully made under the Copyright Act of 1976, and that the paintings cannot be lawfully displayed”.
Richard Prince had 10 days to comply with the court order.
Cariou won round one in the U.S Court for the Southern District of New York. They were due back in court on May 6, 2011 to decide financial damages and attorney fees.
An appeal of Judge Batts's decision had to be filed within 20 days and Richard Prince did not disappoint.
Click to enlarge to read what an art columnist says regarding Prince and his "artwork"
Excerpt from Patrick Cariou's Interview After March 2011 Court Victory
"In my opinion copyright law is badly done, because there is one word in that law that makes everyone really confused, and that word is "transformative."
"It took me over a year to understand what that meant. It was explained to me and I didn't get it. I don't think I'm dumb but I didn't get it.
"It has to be transformed for a purpose, that's what it is, and that's what the judge is saying, and it's going to bring some sanity into the appropriation world.
"You can comment on the original work, or you don't copy it, or you get a license — it's a really simple thing.
"I was in the room when Prince and Gagosian were deposed and they have an overwhelming sense of power. They think that they're untouchable. Prince got away with it for years, and when he got into the courtroom he was like, "What am I doing here?"
--- Patrick Cariou
Richard Prince's appeal
After the court made its March 18, 2011 decision upholding Patrick's Cariou's copyright, Prince had 10 days to turn over his pieces of artwork and books to Cariou.
But this case wasn't over yet. An appeal must be filed within 20 days if a party is not happy with the ruling.
Clearly Richard Prince was not happy that the judge ruled that he was in violation of Cariou's copyright and that he had to turn over his multi-million dollar artwork to Patrick Cariou so that he could "dispose of them, destroy them or sell them as he wished."
Prince still wanted to play the "Fair Use" defense game, feeling he could win in the lower court for the other 5 pieces of art to be accepted as fair use. He contended that after the "transformative" changes he made to them, the five prints did not even resemble Cariou's original photographs now.
The court had earlier defined "transformative use" as artwork which no longer resembles the artwork's original form.
On this basis, Richard Prince filed his appeal.
Prince's 2012 appeal and April 2013 ruling
Richard Prince had to stop his art shows and all his other activities regarding this lawsuit until his appeal was heard. His appeal, filed in January 2012, was finally heard in April 2013.
This time, he was able to get a 3 judge panel to reconsider each piece of artwork individually.
In a landmark 23-page decision, the U S Court of Appeals for the Second Circuit found in favor of Richard Prince, reversing Judge Deborah Batts's March 2011 ruling regarding 26 of the 31 paintings.
Patrick Cariou's 2011 victory was short lived; this decision reversed his verdict and stated that his copyright had not been violated. All former verdicts are null and void.
Summarizing the court's transcript, with two of the three judges ruling and one abstaining, they were convinced that all 26 pieces of Prince's work were "something new and very different" from Cariou's photos and constituted Fair Use. They cited that "in some ways, Cariou's work is not even identifiable, where in other paintings, his work is very apparent because all Prince did was photoshop a guitar onto one body or painted "blue lozenges" on the faces or eyes of others."
The Appeals Court only agreed with one part of Judge Batts's March 2011 decision - that only 5 works were still in question as Fair Use.
Prince won his Fair Use claim and the return of all his artwork.
He was permitted to resume his art shows, market his art and books, make more art with the photographs from the extra copies of Cariou's book he bought in 2011 and continue his screenplay and movie effort.
It should be noted again, that Richard Prince has based his whole career on taking photographs and works of art belonging to other people, "transforming" them to make them into something else so he can put his name on the final art project and market it as such.
An onlooker should be able to conclude that if Prince did not have Cariou's photograph as a canvas, then Prince would have had nothing to "transform."
Unless a Supreme Court reverses this ruling sometime in the future, this court decision will now be a point of reference for every case of copyright infringement citing "Fair Use" from this day forward.
Shortly after this ruling, Patrick Cariou's attorneys filed an appeal of this decision to the highest court in our land - The US Supreme Court.
Judge said: Richard Prince's transformed art using Patrick Cariou's photographs as shown in Exhibits 1 thru 6 ...
A friend of the court speaks
"If you rip out photographs from somebody else's book, put some paint on them and sell them for $10 million, it does seem to most people — and to the law — that there should be some consequences," says lawyer Dale Cendali, who filed a friend of the court brief in the appeal on behalf of the American Society of Media Photographers.
Dale Cendali is a partner at Kirkland & Ellis LLP, and applauds the 2011 ruling by a federal judge finding Prince liable for copyright infringement and ordering him to hand over all copies of the works to Cariou.
Cariou's November 2013 appeal to US Supreme Court
Patrick Cariou's appeal was filed with the U S Supreme Court, requesting them to rehear his lawsuit against Richard Prince.
His appeal also asked for consideration of the financial loss of revenue of his "Yes, Rasta" book, his rescinded art show, his court costs and personal reputation damages, while still alleging copyright infringement on the remaining 5 pieces of art.
While waiting for his appeal to come up on the U S Supreme Court's docket, the fate of the remaining five pieces of art was about to be determined by none other than Judge Deborah Batts.
Although Judge Batts had ruled in 2011 that 25 of the 31 pieces did not meet the "Fair Use" rule, the court kicked the ruling of the remaining five works back to her to decide it if they were sufficiently transformative to meet the "Fair Use" rule.
Sending this back to the original presiding judge, Judge Batts, could have been the foundation for another appeal by Richard Prince if she didn't find in his favor. He would be able to cite judicial prejudice, due to her ruling against him the first time around.
Judge Deborah Batts originally stated in 2011 that she was not able to decide the fate of the remaining five pieces of art. So she announced she would now accept "friend of the court" briefs from interested parties (namely art historians, members of the art community and any supportive party) regarding whether the post-modern appropriation art of Richard Prince infringed on Patrick Cariou's copyright before making her ruling.
The Andy Warhol Foundation and The Rauschenberg Foundation were two of the organizations who filed briefs as well as many individuals who had a stake in the outcome of this verdict.
"Friend of the court" briefs (amicus briefs) are similar to advice and notes sent to the deciding judge to let them know how their decisions may affect certain people or the possible outcomes of future lawsuits.
A week after she accepted the briefs, Patrick Cariou suffered a serious blow - the Supreme Court denied Patrick Cariou's appeal to rehear the case, meaning that all the other issues in his appeal would not be heard either.
In late November 2013, Cariou's attorneys filed a financial loss lawsuit to the U S Second Court of Appeals.
All that was left was to wait for the case to come up on Judge Deborah Batts' docket to decide about the five remaining paintings.
April 2013 Court decision: These photos had been so manipulated that they do not resemble the original work and do not infringe on Cariou's copyright
Artwork which appears on the cover of Prince's book "Canal Zone."
On March 18, 2014, just hours before Cariou's financial loss lawsuit came before the U S Second Court of Appeals, Patrick Cariou and Richard Prince and their lawyers came to an agreement.
They settled this case out of court with each side paying their own court costs and no other monies exchanging between the parties. (screenshot of agreement follows)
From The New York Times interview with Daniel Brooks, one of the lawyers for Patrick Cariou said that he "believed that the [Prince] decision might only further muddy an already confusing terrain for determining fair use. I think that this decision doesn’t offer much guidance or predictability for the future, either to artists or courts that are going to have to deal with these decisions.”
Quoting from the same NY Times article: Donn Zaretsky, a lawyer who blogs about art-law cases and has closely followed the Prince case, agreed with Mr. Brooks. “To me it’s a missed opportunity to really bring some clarity to this issue,” he said. “How do you decide whether something is transformative or just not quite transformative enough?”
This newspaper article sums it up as well.
In the end, this case tied up the courts for over six years, from March 2008 until April 2014. Before the litigants' private settlement, bringing this case to fruition (where a judge actually makes a decision and the case is not settled out of court) could have settled a lot of future litigation, and answered questions about "Fair Use" after someone has altered an original work.
Because both these parties came to a private settlement agreement, the April 2013 decision in favor of Prince will be upheld when it is cited in future lawsuits who try to argue the "Fair Use" rule for each individual case.
And now, Mr. Prince will be permitted to continue his past practice into perpetuity, commanding millions of dollars for his "transformative art," which in this writer's opinion means stolen art and copyright infringement.
So there you have it. Please share your thoughts about this case and what you think of the examples presented in the next section with polls.
2011 Court Decision is landmark, so they packaged it as a book.
Web and Newspaper Opinions
Comments from O.I Media.com and other news websites reporting on this story
If I created a work of art and someone took it, remixed it and posted it online, I might be a little offended, depending on the situation. If it got really popular and the artist that remixed my work gave me no credit, I would be a little offended. To me it's really difficult making and thinking of an idea behind a piece and if I took all this time to make something and someone just took it and made it their own, I might be a little dissatisfied. At the same time, I can admire their take on my piece. I might be amused and flattered that they wanted to use my piece. I kind of have a two-sided view on appropriation where on one hand I don't think it's so nice to the original artist but on the other hand, so many great works come out of it.
I think appropriating other artist's work is completely fine. It's pop-culture. Look at Andy Warhol, painted soup cans and sells for millions. Art throughout history has always been adapted from past works. Creating art operates like how life does. New things come up and they evolve. Older roles have to let them grow, help them even. I see why some people would be upset if they had their work appropriated though. Personally, I'd be fine with it as long as respect and true creative intention is shown.
i don't think that using someone else's work of art is wrong. They may be adding more to it to create something new.Your work of art may inspire someone,they might have an idea and I don't think it's wrong to 'steal' your work as long as they give credit to the person who created the original.
It all depends but its better getting permission to the person who made the artwork. If that person takes the artwork and not giving you credit than of course you'll be mad.
If someone were to take my idea and change it up i would sorta get offended if they did a bad job but if they did a good job i would like it but i gotta get that credit man.
I think it is wrong to steal another person's artwork. Its ok if it is just remixed and used for fun but it should be credited. It is wrong if it is sold with no credit of the original artist.
i think its bad if someone else takes your artwork as there own. it would also be bad if they made it there own and didn't give you any credit. i know i'd be offended if someone took my artwork without letting me know specially if i worked really hard on it and they didn't give me any credit.
I believe taking someone else's artwork and adding your own style is wrong in many ways. Sure you'd like to add more to it if it needed it or you'd like to just add your style to it but that doesn't give you the right to steal someone else's ideas. I believe the only way it would be fair is if you were to ask the artist for permission to alter their work and if they are okay with it then go for it.
If someone did use my artwork I would be pissed because they didn't have the right to do that and they didn't ask my permission if they could do it. Even though the piece of artwork is cool and all, it still shows that it has been used from someone else, so technically the main artist did most of the work, not the artist that took it from the main artist. But if its like a piece of artwork that most of the world knows, it would be obvious who made it or where it came from, like Disney Characters, famous paintings, and much more. But to make it simple, I DON'T LIKE WHEN PEOPLE TAKE MY ART AND CHANGES IT, THEN CONSIDERING IT THERES!
Well, iI think it's not alright using other people's art work. How do you feel if you painted something that took up to 7 hours of labor. And someone takes your work and gets paid a whole lot more than you even though you were the one who originally made it?
I would be mad if someone used my artwork to make their own art, because some people do that and they made more money then you. that's why I think it is not good using artwork of someone. If you do that, it possible that you never create your own artwork.
Is this Fair Use?
You snapped a photograph of your beautiful little girl and you published it in a book of your memoirs. Your book and photographs are copyrighted. You also published the copyright protection clause after the title page of your book.
Someone decides they really like your little girl's photo, then rips it out of the book and scans it into their computer to upload on their website. They typed a cute quotation on the photograph and superimposed (photoshopped) a heart onto the photograph.The sun was not so bright that day, so they brightened up the lighting to make it brighter.
When it is completed, they put their website name and copyright logo on the photo, the way you see with so many photos on Facebook and Pinterest. (see next photo as an example)
If they put it up on their website or they publish it in a book, would you file a copyright infringement lawsuit against this person on the basis that they infringed on your copyright when they "altered" your photograph and added their name to make it their own?
I bring this up because we use a lot of photographs here on Hubpages and we are responsible to make sure we have the right to use them.
Sound off in the comments.
Fair Use or Copyright Infringement?
In the "heart" photo above,
Is this copyright infringement?
In the photo of the little girl above
My Personal Opinion
Since 2008 when this case was first filed, the pundits were saying the outcome of this case will decide the future meaning of "Fair Use" regarding photographs and paintings and the fate of users who want to alter them.
Some online columnists said: If Richard Prince won his "Fair Use" case (legally allowed to use Patrick Cariou's photographs by "transforming" them), upholding his long standing practice of appropriating the work of other artists, it would continue to support the current practice that anyone could add quotes, objects and copyrights to any work of art or photograph. We see this every day on the internet with quotes and website logos typed onto someone's photographs. (examples shown above with polls)
Some online columnists said: If Patrick Cariou won his case stating that "defacing his photographs" and putting the new artists name on the work was copyright infringement, this would literally change history because databases and search engines, like Google and others, who provide documents and photographs for "free use" of anyone searching for them, so they can add quotes, objects or copyrights to them, could be in jeopardy of the "Fair Use" rule because this would no longer be considered "Fair Use."
I just don't understand the reasoning behind some people's sense of right and wrong. From the above comments, most of these people (who probably have never had any work of art stolen from them where someone went on to make millions from their work) are supportive of Richard Prince's past practice and work ethic. Several comments are not supportive and feel what he does for a living with other people's work is wrong.
I feel that just because something has been a long standing practice in the past, doesn't mean it is okay to do, in this case violating the copyright of an author or artist.
This case and several others like it have made me feel that copyrights are not worth the paper they are written on because they do not protect us - the creator of the work. This case showed that If a copyright is challenged on the grounds of altering the work, the other party can rebut the lawsuit with a fair use or transformative art defense, and they can win.
There is something seriously wrong with this thinking.
Someone else created the work in the first place. If that had not been in place, the artist would have had nothing with which to create.
If you painted a new painting FROM a photograph, that's not stealing the photograph. That's creating a work of art using the photograph as an example. If you are any good at it, hopefully the painting is a good likeness of the real person in the photograph. That's part of what makes the person an artist. But painting ON a photograph - is equivalent to defacing a photo that belongs to someone else. You don't own it when you get done painting on it.
Let's say I wrote a book, took all 40 photographs to include with my story, and published it under my own name. I legally have the copyright on that book and the 40 photographs. Now let's also say that the book was not a commercial success and I didn't make much money from it.
Now let's say someone like Richard Prince comes along, decided to put a different cover on MY book with his name as new author, as he did in the past (shown in the above photo of Catcher in the Rye by JD Salinger; also referred to in text from the court documents). So, now he markets the new book for sale and makes $10 million off my story and photographs which now has his cover and his name on it.
You can bet your bootie that I'd sue him or anyone else (artist, book publishers, distributors,etc.) who helped him do it and haul them into court. Because that is wrong, I don't care who you are - no matter if Richard Prince did it, if Oprah did it, or if President Obama did it (only naming well known public figures, no harm or slander intended).
If you didn't actually take the photos or write my book, you have no right to take my name off it and replace it with your own.
In the same example from above, Richard Prince, as the new "author" of my book with a new cover had better be able to produce my photo negatives and proofs, my story outline, and my notes for each chapter of the book to be able to convince me or any judge that the book is his.
Now look at this case with Patrick Cariou's photographs and what Richard Prince did to them to make them his own. It is very similar to the book analogy I just gave you.
If you paint ON an existing photograph or add a new book cover ON an existing piece of work, it DOES NOT make it yours. So, no I do not agree with the court ruling in this case.
Taking a book, replacing the author's name with yours, slapping a new cover on it OR taking photographs from a book and slapping some paint on them - that's stealing, and in my opinion, that's copyright infringement.
Patrick Cariou may eventually have some financial success, but it will have to be with a different subject of photographs because Richard Prince has essentially ruined his chances of making any money from his "Yes, Rasta" photographs. And that's a damn shame.
This case took one man's talent and copyright, and transferred it to someone else, legally, in court of law. What the heck is wrong with that picture?
Without the protection of a copyright and all that it stands for, we authors and artists don't stand a chance in court to protect what we have created.
I look forward to your thoughts.
© 2014 Rachael O'Halloran
Do you agree or disagree with the Court's final decision?
Rachael O'Halloran (author) from United States on April 27, 2014:
It was a very volatile case to follow.
Thanks for reading and for your comment.
Dianna Mendez on April 27, 2014:
What a fascinating post and so well written.
Rachael O'Halloran (author) from United States on April 23, 2014:
And pay his outrageous prices too!
Shaming him goes nowhere with him, because he feels no shame. He is rewarded when people pay his high price tags, which in turn only makes him produce more garbage that he knows more people will pay for. Then back to making more garbage. He has subsisted this way since the 1970s.
I hate it when I see an underdog (Cariou) getting ripped off like this, no matter who they are. If it is wrong (when one persons's income, opportunity for freedom to make income and when their life's work is threatened or taken away), it is wrong. And this is wrong. :(
Thank you for your comment
FlourishAnyway from USA on April 23, 2014:
This guy is not an artist. He is a just a cheap thief, stealing people's ideas and hard work. Shame on him AND the people who knowingly purchase his work and support his practice of creative ripoffs.
Rachael O'Halloran (author) from United States on April 21, 2014:
LOL, I'm glad you can see why this case riled me up so much. Thank you for reading and giving your eloquent and creative opinion! I have read where Cariou has decided not to pursue this particular artist in court on any work he 'steals' from him now, because of the settlement. I don't agree. I think he he takes anything from Cariou - other than Yes Rasta prints - he should go back to court on those prints.
Because of the ruling the judge gave to Prince, it leaves the door open for Cariou to suffer more abuse of his work - either this work or other prints he has - and I think he would do well to revisit the courtroom and go for this again.
Even though the Court ruled against him in Prince's case, each case is judged differently - or supposed tobe judged differently - he just might win one of these days.
I agree it was a terrible injustice to Cariou. Thank you for reading. :)
Nell Rose from England on April 21, 2014:
Well I was fuming all the way through reading it! what a @@@ liberty! I know one thing, if some no talented twit who doesn't have a bone in his body of creative juices stole something of mine like that I would probably wait till he opened his gallery of 'creative licence' stolen photos, then take a great big pot of yellow paint inside, smother everything in it, then write my name on it, and say, well, its creative licence! so mad.....arghhhh!
Rachael O'Halloran (author) from United States on April 18, 2014:
I think it is an area that will be revisited and re-judicated with each new lawsuit, because there will always be one party who feels wronged and another party who feels it is their right to take.
Unfortunately in this case, a court of law agreed that it is all right to take. :(
Thank you for reading and for leaving your opinion.
Ronald E Franklin from Mechanicsburg, PA on April 18, 2014:
The appeal court's decision definitely seems unfair. But I guess all this goes to show just how murky the waters of Fair Use can be.
Rachael O'Halloran (author) from United States on April 16, 2014:
Yes, I agree - for without his work, the "transformation artist" would have not had a basis to create.
I am passionate about author rights and I have several more of Interactive Jury hubs I'd like to present if readers are interested. Not all are about copyrights, several are about crimes against human rights and such.
I hope you'll stop by to see what else I have to offer in the coming days.
Thank you for reading through this case and for your comment and opinion.
Victor W. Kwok from Hawaii on April 16, 2014:
I believe that the photographer should at least be entitled credit for what was used in the art, since it was his work from which was altered. Great hub. I can see that you have great insight in this case.
Rachael O'Halloran (author) from United States on April 14, 2014:
LOL now you know why this case made me so angry!
Thanks for coming back to revisit this hub. I've lived with it for almost a month since the decision and have been ticked off every day I've worked on it since. lol
John Hansen from Queensland Australia on April 14, 2014:
I'm commenting again Rachael, because this case made me so mad. Prince should be struck off the artist's register (if there is one...lol) for impersonating an artist. If he can't create his own art from scratch without stealing others work(he doesn't even ask permission, which galls me) he doesn't deserve to be called an artist. He should be charged and have to pay royalties on everything he's taken from others. Agh!
Rachael O'Halloran (author) from United States on April 14, 2014:
#CraftytotheCore - His show being cancelled was the first inkling that Richard Prince was even on the scene doing his show, so yes, I'm sure that was the catalyst for the lawsuit - or at least the steam behind it.
Before the case for damages came up in court, that is when the two parties settled out of court. Although the lawyers for both parties say no money changed hands, the pundits are spinning their own tales that money did change hands ... at least they think it did but there is no proof. I provided links to several in the comment above to bravewarrior.
I often wonder if the court would have awarded Cariou $$$ but the pundits say no, that he didn't deserve it because he still had his work left to market on his own. Prince essentially stole his thunder by taking his photos and reworking them. The victory in court only reinforced the fact that they agreed that he was allowed to do this. And in my opinion, that's not right either.
Thank you for reading and commenting on this case.
CraftytotheCore on April 14, 2014:
Wow, it must have been very upsetting for the author to have his show cancelled because someone else took his work and was hosting a show of his own. That's really messed up. I cannot believe a court didn't award monetary damages for that.
Rachael O'Halloran (author) from United States on April 14, 2014:
I ooooh so agree with you. I thought this topic would touch a nerve with many writers because it threatens the very reason we feel protected from predators who copy our work.
But each time this case went through the appeal process, I was getting more and more mad by the minute. And when the judge ruled in favor of Prince, I could just see him doing the happy dance and Cariou's face full of defeat.
Although the agreement says they did not settle with money, I - like you - believe Cariou should have received something, if even only 10 percent of the sales of all products - books, art show, individual paintings. At 10% even at the lowest price Prince commands at $500,000, it is better than what he is getting now - zip.
For me, I would never ever have agreed to that settlement, especially with no money involved (if the newspaper reports and if the Prince camp can be believed) Some online columnist say it was settled for an undisclosed sum (no citations listed), but in interviews I've read since then with Cariou, there was no money exchanging hands.
and the following link has no credibility because they cite the case only took 3 years when it took 6. They said "it's a safe bet" which is not the same thing as a check in the hand!
If this was me, there would have been a bigger splash in this case and much louder noise with a high demand for payout.
But since there is no evidence of that and just because I have a mischievous nature .... If I were Cariou, I'd find some original piece by Prince (if such a beast actually exists, since he can't create his own art) and make it my own "transformative art" even if I only spit on it 20 times with red kool aid to make red marks on the canvas. Then I'd market it as "My transformative art using the world renowned Richard Prince's famous "named"art piece " and then I'd put a nice affordable price tag on it not only so it would get sold but to bring it to the attention of Prince and his fan base.
Then I'd DARE Prince to take me to court over it. I cite Fair Use and Transformative Art the same way he did and I'd use his court precedent-setting ruling to my defense. And believe me, there would be a hefty financial settlement (with future claim on royalties) on that issue to settle it out of court!
I think Prince's gall, high priced lawyers (he can afford them) and his name all worked in his favor against Cariou, a relatively unknown and obviously not a big earning artist. I think as stated that the feathers didn't want to be ruffled to deal with the repercussions of Prince's art already in place if the court had ruled not in his favor.
After all, the first court ruled all the art had to be turned over to Cariou to do with as he wished. I think he should have sold as much of it as he could have when he had the chance so at least he would have had something (maybe not to keep but feel good for the time being lol).
He might have had to give it back in the overturned appeal, but heck, he'd only have to give back what he had left, just like Prince only had to turn over what art he had in his possession - not track down all he sold and get it back to turn over to Cariou.
But I do agree, Cariou should be getting a cut of all the proceeds from any piece that even smacks familiar of his photos. When I read the praising comments from the NY Times and O.I. Media - the other site I included in the hub, that they'd be flattered if someone took their art and reworked it - I thought -What's wrong with these people? They are flattered someone would take their art and do that with it??? That's why I think they have never had anything stolen from them before or they'd never be so agreeable to allow someone to "flatter them" by stealing their thunder.
Thanks for reading and commenting.....I obviously am very well opinionated on this subject and I welcome you (all readers) to share this hub with your friends and followers so they can give their opinions too.
Thank you bravewarrior
Rachael O'Halloran (author) from United States on April 14, 2014:
Thank you for your praise on this concept - I was aiming for original, something that would engage each reader and hopefully stir them up to get some conversation going.
I guess you can tell from my rather in-your-face "personal opinion" that I also disagree. This decision leaves the door open for anyone to do anything to a writer's work and claim Fair Use (or that really bullcrap term - Transformative Art i.e. defacing the work) and that is why I wrote that our copyrights are now not worth the paper they are written on.
Although books, and anything text oriented will not go through the scrutiny that photos and artwork does, this case sets a precedent that says if any person takes your work, changes it in some way, then puts their name on it (copyright), you no longer have a claim to go after them for what they did to your work. And that is just downright wrong.
The book photo in the hub with Catcher in the Rye is a prime example of -- everything - copyright infringement, plagarism, totally stealing someone's work (in every aspect), copied content (by putting his name on it and repackaging it he essentially copied the content into another book) and I can't begin to count how many more things this smacks illegal.
The fact that this guy has been doing this since 1970s and has gotten away with it and the fact that he has soooooooo much work in museums, private homes and is well known, I truly didn't think the courts wanted to tackle the exponential legal ramifications of recalling (removing) all that work for national museums and multi-millionaire homes and galleries not to mention the subsequent lawsuits which would have gone on for years.
Thank you for your comment, Jodah. I guess you can tell this really rubs me the wrong way and that's why I wanted to share it.
As I told billybuc in my comment, I have 11 more hubs on various "crimes" right behind this one. If I see this is well accepted, I'll be publishing them in quick time. I just shared my own hub trying to improve traffic to get this noticed. So far since I published it, there are only 5 views, so I'll have to wait and see if this hub is engaging enough and provocative enough to spur people to read and comment. And get mad! lol
Rachael O'Halloran (author) from United States on April 14, 2014:
Ah, I was going for original and I guess I pegged that. lol
Thank you for reading this book-length post. Unfortunately they are all long because of the amount of information that has to be given to the reader.
Yes, it is a series - on all different kinds of cases. This was my opener since we are writers, I thought the topic would hit home.
I have 11 more right behind this one but I don't want to saturate my hubs with one after the other, so I'm planning to space them out to every 5 to 7 days or so.
If I see more positive responses and hub interaction (voting) on the polls, that will tell me there are readers who vote, but don't necessarily want to comment. In that case, I'll step up the publishing. An ebook is something I haven't tried yet, but want to aspire to. I never thought about putting these into an ebook, so now I have a direction. TYVM
Thank you so much for your compliment and comment and encouragement.
Shauna L Bowling from Central Florida on April 14, 2014:
Rachael, this issue is wrong on so many levels! First, fair use dictates the original artist be attributed for their work. This was not the case in Cariou vs. Prince. Secondly, permission was not obtained by Cariou to have his work used or altered. Third, how can anyone use someone else's work, doctor it up and call themselves and artist? And the whole Catcher in the Rye thing. Are you kidding me? What American didn't read that book in school or somewhere in their lifetime? Plagiarism to the enth degree on all counts if you ask me!
And the ruling in Prince's favor is now the precedent. How so very, very wrong. It must have killed Cariou to agree to that settlement.
Bill Holland from Olympia, WA on April 14, 2014:
Well done and a very unique and interesting hub. Make this into a series, then an ebook....this is an approach I have not seen before in three years.
John Hansen from Queensland Australia on April 14, 2014:
Ths is a great concept for a hub. Very original. I definitely disagree with the final court decision. Prince should only have been able to use Cariou's photos with his permission and should also been required to pay him a percentage of any profits he made from them.
Using his past usage of other artist's works and his standing as a popular artist is "crap" (excuse the French).
Princes "name" gave him the advantage to be able to make a fortune from other artists works, while they did most of the work and struggled to make money. He didn't even improve on Cariou's work. His alterations to the original wonderful photos made them ugly.
The bottom line is that you should be able to use others's work if you . 1. get permission, 2. don't use it to make a profit, but only for personal use, 3. alter it completely so it is no longer recognizable, but still have permission, 4. give full credit to original artist.
I feel Prince should have been made to give Cariou at least 50% on everything he made from sales etc of the works. Voted up. Well done.