The Effect of Cariou v. Prince on Advising Appropriation Artists

Cariou v. Prince is a case that has fascinated those interested in copyright and art law. On November 13, 2013, the Cardozo Art Law Society hosted a lively panel discussion regarding what the decision means for artists and the lawyers who represent them.

Photographer Patrick Cariou brought a copyright infringement suit against famed appropriation artist Richard Prince after the latter incorporated dozens of Cariou’s photographs into a series of works that sold for over $10 million. The issue on appeal was the proper standard to apply in determining whether a work is transformative, and therefore a fair use. The district court held that Prince’s works were not a fair use since they did not comment on, or relate back to, the original photographs. This ruling was overturned by the Second Circuit, which held that "the law does not require that a secondary use comment on the original artist or work, or popular culture," but only that a reasonable observer find the work to be transformative. Using this standard, the appeals court found that 25 of Prince’s works were a fair use, and remanded for further determination the additional five works.

The panel discussion was moderated by Amanda Hamilton, president of the Art Law Society, and featured Alan Behr of Phillips Nizer LLP, John Koegel of the Koegel Group LLP, and Michael Rips of Steptoe & Johnson LLP. The panelists agreed that while that the law is much more favorable for appropriation artists after Cariou v. Prince, the decision leaves attorneys with a diffuse and confusing set of standards. However, the panelists were sharply divided as to whether the decision is a positive development for copyright law. John Koegel, who has represented Jeff Koons in multiple lawsuits, lauded the decision as clearing a path for artists to create without excessive legal obstruction. In contrast, Alan Behr, himself a photographer and art critic, criticized the decision for the enormous liberties this test allows artists to take with intellectual property of photographers. Michael Rips took a more moderate approach by generally favoring the rejection of a fair use standard that requires commentary on the original work, but took issue with the “reasonable observer” standard.