Appeals Court Overturns Previous Ruling, Rules Fair Use in Richard Prince Case


There’s a fine line between fair use, copyright infringement, and downright theft. And while some might argue where exactly that line stands, “rephotographer” and appropriation artist Richard Prince just got a Federal Appeals Court to take his side in what may turn out to be a landmark ruling regarding fair use.

In case you’ve not kept up with our previous coverage on the matter, here’s a short recap:

Back in 2011, Richard Prince lost a major copyright lawsuit to photographer Patrick Cariou. Cariou sued Prince over 41 photographs from the book Yes, Rasta that Prince had appropriated, modified, and then displayed at a gallery exhibition that nabbed him and the gallery some $10 million.

The US District Court ruled (and many photographers agreed) that Prince’s work was not fair use, and ordered that all the infringing works be destroyed. Prince’s less than compelling side to the story came out in an interview in which he said, “I didn’t really even think to ask. I don’t think that way, it didn’t occur to me to ask him and even if I did and he said no, I still would have taken them…”

Here’s an example of the types of modifications Prince made to Cariou’s work:


But that 2011 ruling has just been overturned by a Federal Appeals Court, which ruled that 25 of the 30 works at the forefront of the dispute are, in fact, fair use. Speaking to Art in America, attorney Virginia Rutledge said that the ruling “absolutely clarifies that the law does not require that a new work of art comment on any of its source material to qualify as fair use” — a precedent that some see as saying that all appropriation art is inherently fair use.

The court explained that the new work doesn’t have to comment on the original in any way, as long as it alters the original in such a way as to provide a “new expression, meaning, or message.” Read into that how you will.

While this is, no doubt, a devastating blow to Cariou, he hasn’t entirely lost. The remaining 5 photos in dispute have been send back to the lower court, where they are to be re-evaluated using the new standard handed down by the Appeals Court.

(via PDN)

Image credit: Photo illustration based on Giant Gavel by Sam Howzit and photograph by Nathaniel Paluga

  • eraserhead12

    I can’t begin to imagine how many original artists will suffer as a direct result of this ruling.

    Paint three blobs over the face and it’s yours to profit from? No need to contact the person who captured the image? Posting modifications for fun on a blog is one thing, but literally publishing them in a book without so much as due credit?

  • Bob Prangnell

    The stupid people are the ones who paid anything for the juvenile ‘art’ that this charlatan stole.

  • Paul

    The new image has a completely different feel to it and their are distinct reasons for liking each photo, this makes perfect sense to me.

  • Guest

    btw, currently selling R̶i̶c̶h̶a̶r̶d̶ ̶P̶r̶i̶n̶c̶e̶’s my prints for $500 each.

  • eraserhead12


  • mlieberman85

    I’m all about fair use but this is a bit ridiculous. If the majority of the image is the original person’s work how is that fair use? Fair use is cited in cases of collage and parody, how is this fair use? Especially when it appears it’s not just this image but 41 images that were appropriated?

  • Pablo

    Post the court’s opinion! Trial court’s and the appellate court’s! Nobody has a copyright in a federal court’s writing.

  • Renato Murakami

    That’s the problem with fair use… seems that the one that endures the most or has the best lawyer will end up winning regardless.
    If a crude editing job like that is considered fair use, wouldn’t the Baio x Maisel (that Miles Davis cover turned to pixel art) be a clear case of fair use? Provided that Baio decided to settle because he wouldn’t be able to deal with court costs, but still… pretty bad when you have a law that clearly gives advantage to whoever has the most money/time to spend (yeah, I know it’s the reality for lots of things unfortunately, but not as blatant as this case).

  • John R

    This modified image infers that the girl is a prostitute. As that is defamatory it would not be entitled to copyright protection. Personally I would be looking for damages.

  • Mitch Labuda

    As each case of alleged infringement is tried on a case by case basis, by different judges with different ideas as to the definition of the law, how, can this be precedent setting? Another dispute of fair use could present different perspectives, etc., The Appeals Court ruled on the application of the law to the case.

  • Olafs Osh

    While you could be right in this side of things, the second piece would be never see the daylight without the hard work of Cariou. Take out his image and see for yourself, how much feel is left there.

  • Eugene

    I feel very uneasy about fair use. I couldn’t even imagine that being done to my works… Who would want their works to be used, modified, and then sold without permission and calls it fair? Outrageous!

    If the original artist doesn’t give you permission then don’t use his/her works!

  • thetruth

    Prince is an ass and a thief, not to mention a terrible artist. Who would pay tht jerk 10 mil for lousy photoshopped crap!

  • Scott M.

    What happened to copyright laws? Show the original and it is yours? Things are starting to go sideways. Free use internet theft is now out of control.

  • Captain Obvious

    10 million dollars made on these pieces of crap? Wow.

  • Anonymoused

    Is this that chick from Degrassi?