Rewriting Fair Use in 'Cariou v. Prince'
In Cariou v. Prince, 714 F.3d 694 (2d Cir. 2013), the U.S. Court of Appeals for the Second Circuit has rewritten the fair use doctrine as it applies to artistic appropriation. That decision, built on false assumptions, assures confusion and misdirection for attorneys and judges into the indefinite future.
Patrick Cariou spent six years photographing Rastafarians who lived in the mountains of Jamaica. Cariou's photographs, published in a book (Yes Rasta), were incorporated by Richard Prince, a well-known contemporary artist, into a series of paintings and collages. To Cariou's photographs, Prince added, in varying degrees, naked women, guitars, and circles of color. Cariou did not consent to the use of his work.
Cariou sued Prince and was granted summary judgment. Rejecting Prince's defense that the paintings were protected by the fair use doctrine, the district court held that the first fair use factor1 required that "the new work in some way comment on, relate to the historical context of, or critically refer back to the original works" and that "Prince did not intend to comment on Cariou, on Cariou's Photos, or on aspects of popular culture closely associated with Cariou or the Photos when he appropriated the Photos." In so holding, the district court relied on Rogers v. Koons, 960 F.2d 301 (2d Cir. 1992).
The Second Circuit reversed.
Jettisoning Rogers, the Second Circuit held that it is no longer necessary for an appropriating work to make reference to the prior work. So long as the messages of the two works were distinct, the fair use doctrine applies.
As to whether the messages of Prince and Cariou were distinct, the court was confronted with Prince's testimony that he was not "trying to create anything with a new meaning or a new message." The Second Circuit dismissed these remarks, holding that an artist's testimony as to what their work meant was irrelevant.
"What is critical," the court ruled, "is how the work in question appears to the reasonable observer"; so long as a reasonable observer would consider Prince's work to have a transformative purpose, the first fair use factor is satisfied.2 Applying that test to the 30 paintings at issue, the court held that all but five were so obviously different in color, dimension, and materials as to give a reasonable observer the impression that the meaning of Prince's work was dissimilar from that of Cariou's.
The court also found that the fourth fair use factor—whether Prince's paintings usurped the market for Cariou's photographs3—favored Prince. Collectors of Prince's work, the court observed, included wealthy individuals who were willing to spend hundreds of thousands of dollars; Cariou, by contrast, had earned approximately $8,000 from Yes Rasta and sold only four photographic prints. There was no evidence, according to the court, that anyone who had been interested in purchasing a photograph by Cariou had decided not to buy it owing to Prince.
In overturning Rogers, the Second Circuit greatly broadens fair use protection for artists who employ an appropriationist method—the practice (dating back to Duchamp and Picasso) of using preexisting artistic images and artifacts.
The second change brought about by Prince is the way in which the "purpose" of a work of art is determined under the first fair use factor. The Second Circuit held that the artist's view of the purpose of his or her work is less significant than the meaning which is attributed to the work by a "reasonable observer."4 An untrained, rural artist from the 1930s may create a crudely carved sculpture with the sole intent that it convey a religious message, but if a "reasonable observer" views the work as Cubist or as a commentary on a vanishing rural society, it is this interpretation that prevails.
This approach to the meaning of art has its origin in quite recent developments in literary criticism, linguistics and anthropology—including structuralism, post-structuralism, and reader-response theory—and their roots in the writings of Hans-George Gadamer and his teacher Martin Heidegger. For the advocates of this method, the historical and cultural context of the observer is all important and comes at the expense of the artist— "the birth of the reader must be at the cost of the death of the Author."5
But in adopting this view, the Second Circuit failed to account for the fact that in 1976, when Congress codified the common law of fair use in the Copyright Act, this manner of interpreting art was nascent, arcane, and disputed, and there is no evidence to suggest that Congress had any familiarity with this view of the meaning of art. For those who adopted the Copyright Act of 1976, it is doubtful that they defined the meaning of a work of art to be anything other than that which was assigned to it by its creator.
Nor did the Second Circuit explain why, among the variety of contemporary interpretations of the meaning of art, it chose the one it did.6 The importance of this may be illustrated by applying a feminist interpretation to the works in Prince: such an interpretation would yield the conclusion that Cariou and Prince's works (despite their differences in scale, color, and material) have a common meaning—the privileging of men over women and the environment. A reviewer for The New York Times commented that Prince's works "underscore the unfortunate idea of painting as a man's activity and women as artists' models, girlfriends or sex partners."7 Different methods of interpretation, ergo different conclusions as to meaning.