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Cariou v. Prince

United States District Court, S.D. New York

January 30, 2014

PATRICK CARIOU, Plaintiff,
v.
RICHARD PRINCE, GAGOSIAN GALLERY, INC. and LAWRENCE GAGOSIAN, Defendants.

          BRIEF AMICI CURIAE OF ___ IN SUPPORT OF A FAIR USE DETERMINATION AS A MATTER OF LAW BASED ON THE HARM TO THE MARKET CAUSED BY NON-TRANSFORMATIVE APPROPRIATION

         STATEMENT OF INTEREST

         The American Society of Media Photographers (“ASMP”), PACA, Professional Photographers of America (“PPA”), National Press Photographers Association (“NPAA”), Jeremy Sparig, Graphic Artists Guild (“GAG”), American Photographic Artists (“APA”), and the American Society of Journalists and Authors (“ASJA”) (collectively “Amici”) represent a community of photographic and visual artists with a considerable interest in how the resolution of this matter will impact the rights in their original creations.

         PRELIMINARY STATEMENT

         ASMP, PACA, PPA, NPAA, Jeremy Sparig, GAG, APA, and the ASJA, all organizations and individuals with a strong interest in the photographic arts, support the position that Prince is not entitled to a fair use defense, as a matter of law, with regard to the five paintings, Graduation, Meditation, Canal Zone (2007), Canal Zone (2008), and Charlie Company (collectively the “Five Paintings”). These organizations are deeply concerned that the application of the “reasonable person” test, as proposed by Prince and the Warhol Foundation, to determine whether a work is truly transformative, does not require more than a nominal display of the photograph in a different medium. Such a test would permit the blanket appropriation of photographic creations without compensation to the creators. The ability of a reasonable person to distinguish visually the actual act of creativity in which the appropriating artist engaged is critical to protecting the rights of the original photographer. While appropriation is a long-known practice in the artistic community, the mere marketing of a photographer's underlying work in a different medium is no different than selling any intellectual property through a different form of distribution. Such a standard would create an undue safe harbor around a small coterie of well-connected artists, at the expense of the greater community of photographic artists.

         As such, the amici also submit this brief to emphasize the harm that a loose application of the test to determine the transformativeness of an appropriated work would have upon the market for photographic licensing. The market to license graphic images is robust and easy to navigate. In turn, the licensing market is essential to the livelihood of photographers working throughout the United States. A standard that permits the mere appropriation of photographs, with minimal alteration, threatens to completely undermine the photographic licensing market. A simple change in the context of the photographic display does not constitute a new creation, but rather simply allows the appropriating artist to distribute the original work in a new market. The ability to sell an original image as a new work based on market connections in the world of art galleries and celebrity society is the very function of a licensing market. Prince did not develop a new vision, but was merely in better position to market Cariou's protected work.

         The decision before this Court is how to apply the Second Circuit's explication of the “reasonable person” test to determine whether a work in transformative. The application of this test is critical to the application of the remaining fair use factors; in particular the effect that permitting barely altered visual images to be appropriated wholesale into other works of would have on the value of original works. Permitting a fair use defense on merely appropriated photographic material not only harms the market for the original paintings, but also damages the artist's market for derivative sales of the works for items such as postcards, posters, and other public consumables. The amici urge this Court to find that a “reasonable person” must be able to discern a visual distinction indicative of transformative work. Such an application is more consistent with the Second Circuit's opinion and avoids devaluing the copyrights held by photographers throughout the United States.

         ARGUMENT

         Amici are writing to the Court in support of Cariou's position that the Five Paintings infringe his copyrights and do not qualify for the fair use defense. In remanding this determination to this Court, the Second Circuit observed that the Five Paintings “do not sufficiently differ from the photographs of Cariou's that they incorporate for us confidently to make a determination about their transformative nature as a matter of law, ” Cariou, 714 F.3d at 710-11, indicating that the Five Paintings may hew too closely to the original photographs to even consider whether and how they might embody a new purpose and thus be transformative. It is also important to note that the remand was not limited to the question of whether the Five Paintings were transformative, but rather “whether such relatively minimal alterations render [the Five Paintings] fair uses (including whether the artworks are transformative) or whether any impermissibly infringes on Cariou's copyrights in his original photographs.” This Court is thus directed to go through the full fair use analysis as to each of the Five Paintings, of which “transformativeness” is an element of the first factor.

A. Prince's Approach to Determining Whether His “Minimal Alterations” to the Five Paintings Were Transformative Permits Unfettered post hoc Rationalization of Appropriation and Provides No Reasonable Limit on the Fair Use Defense

         The Second Circuit remanded consideration of the fair use defense as applied to the Five Paintings, which minimally altered Cariou's original photographs. Cariou, 714 F.3d at 711. Prince claims that “it is possible for a jury to conclude that the remanded artworks may be perceived as having a different message than Yes, Rasta depending upon the context in which the photographs are presented.” Def. Mem. of Law Applying the 2d Cir.'s Fair Use Standard at 9. This approach is wrong, because it removes entirely the requirement that the court identify a new transformative purpose embodied by the new work. Indeed, Prince's proposed standard could easily be applied to the mere display of unaltered photographs, as the display of old photographs in a new setting or venue could theoretically convey a different message to some hypothetical observer.

         The core of Prince's position is that a reasonable person may envision an unaltered photograph in a different context, such as a book versus a painting, as different simply due to its being placed in a new context. See, e.g., Defs' Mem. of Law in Resp. to Pl. Mem of Law at 9- 11. The Warhol Foundation's argument, taken to its logical and not-too-distant extreme, suggests that when it comes to any form of “appropriation art”-art that repurposes the works of others- courts should never decide whether the second work brings about a transformative use of the first work, and always err on the side of fair use. Br. Amici Curiae of the Andy Warhol Found. at 13- 16. This is the correct result, according to the Warhol Foundation, because nobody-not the court, lawyers or even the artist himself-is in the position to say whether the second work conveys a different message to some hypothetical member of the audience. Id. at 16. This approach must be rejected, as it is entirely at odds with the plain language of Section 107, as well as its interpretation and application by the Second Circuit in this case.

         Contrary to the urging of Prince and the Warhol Foundation, the Second Circuit did not say in sum or in substance that the fair use test turns on the simple question of whether the defendant combined the copyrighted work with other materials. In the particular context of this case where that is what Prince did the Court indicated that the key question on remand is “whether such relatively minimal alterations render [the Five Paintings] fair uses (including whether the artworks are transformative). . . .” Cariou v. Prince, 4 F.3d 694');">714 F.3d 694, 711 (2d Cir. 2012). The Second Circuit specifically directed this Court to consider whether the “relatively minimal alterations” constitute actual transformativeness; thus, the focus must be on those minimal alterations to determine if Prince's appropriation of Cariou's photographs were transformative. If so, explained the Court, then the Court is free to examine whether Prince's work “serves some purpose, ” whether enumerated in the preamble to Section 107 or not. But the key here is “purpose”-the Second Circuit mandates the identification of a “purpose.” That obligation cannot be satisfied by merely identifying differences, nor can it be satisfied by passing off the job of determining whether the differences give rise to a new “purpose”-both exercises must be done by the court. Upon reflection, the necessity of this approach is rather obvious in the specific context of appropriation art-no amount of explanation or speculation can give rise to a cognizable new “purpose” if the two works are identical or nearly indistinguishable. Likewise, no amount of alterations, without the identification of a new purpose, can turn a collage from an infringing derivative work to a non-infringing fair use. Both elements must be there.

         This approach plays out clearly in the Second Circuit's assessment of the 30 works at issue. In connection with the 25 that it determined made fair use of Cariou's photographs, the Second Circuit said that they “manifest an entirely different aesthetic, ” and that those works “have a different character, give Cariou's photographs a new expression, and employ new aesthetics with creative and communicative results distinct from Cariou's.” Cariou, 714 F.3d at 708. When considering the five remanded photographs, however, even though the Second Circuit identified changes, which in turn led to a different feel-“[w]here the photograph presents someone comfortably at home in nature, Graduation combines divergent elements to create a sense of discomfort”-the Second Circuit felt that it was too close to call. Thus the Court wrote:

[W]e cannot say for sure whether Graduation constitutes fair use or whether Prince has transformed Cariou's work enough to render it transformative....it is unclear whether these alterations amount to a sufficient transformation of the original work of art such that the new work is transformative....the district court is best situated to determine, in the first instance, whether such relatively ...

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