1. Why did the court emphasize the transformational character of Prince’s work?

2. Do you think that the court used the four factors effectively to determine whether or not there was fair use?

3. Could the Gagosian Gallery be liable for secondary or vicarious infringement?

In 2000, Patrick Cariou, a professional photographer, published a book entitled Yes Rasta, containing classical photographs and portraits he took while living in Jamaica for six years. Richard Prince is a successful appropriation artist whose work has been exhibited in several prominent museums. In 2007 and 2008, he exhibited paintings and collages called Canal Zone at the Eden Rock hotel in Saint Barth’s and at the Gagosian Gallery in New York. The paintings and collages incorporate some of Cariou’s copyrighted images from Yes Rasta. Prince used the photographs but altered them in various ways such as by painting “lozenges” over the faces or adding a guitar. In some paintings,

Prince added works of other artists to Cariou’s photographs. Cariou sued Prince and Gagosian, alleging copyright infringement. Prince and Gagosian raised the defense of fair use. The lower court held that Prince was not entitled to a fair use defense because “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.” The court ordered all of the infringing works to be delivered to Cariou for “impounding, destruction, or other disposition.”

JUDICIAL OPINION

BARRINGTON D. PARKER, Circuit Judge.… The “ultimate test of fair use … is whether the copyright law’s goal of ‘promoting the Progress of Science and useful Arts’ … would be better served by allowing the use than by preventing it.”

The first statutory factor to consider, which addresses the manner in which the copied work is used, is “[t]he heart of the fair use inquiry.” Blanch, 467 F.3d at 251. We ask “whether the new work merely ‘supersedes the objects’ of the original creation, or instead adds something new, with a further purpose or different character, altering the first with new expression, meaning, or message[,] … in other words, whether and to what extent the new work is transformative.…

[T]ransformative works … lie at the heart of the fair use doctrine’s guarantee of breathing space.…” Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994). “If ‘the secondary use adds value to the original—if [the original work] is used as raw material, transformed in the creation of new information, new aesthetics, new insights and understandings— this is the very type of activity that the fair use doctrine intends to protect for the enrichment of society.’ ” Castle Rock Entm’t, Inc. v. Carol Publ’g Grp., Inc., 150 F.3d 132, 142 (2d Cir. 1998) (quoting Pierre N. Leval, Toward a Fair Use Standard, 103 Harv. L. Rev. 1105, 1111 (1990)). For a use to be fair, it “must be productive and must employ the quoted matter in a different manner or for a different purpose from the original.” Leval at 1111.

The district court imposed a requirement that, to qualify for a fair use defense, a secondary use must “comment on, relate to the historical context of, or critically refer back to the original works.” Certainly, many types of fair use, such as satire and parody, invariably comment on an original work and/or on popular culture. For example, the rap group 2 Live Crew’s parody of Roy Orbison’s “Oh, Pretty Woman” “was clearly intended to ridicule the white-bread original.” Campbell, 510 U.S. at 582 (quotation marks omitted). Much of Andy Warhol’s work, including work incorporating appropriated images of Campbell’s soup cans or of Marilyn Monroe, comments on consumer culture and explores the relationship between celebrity culture and advertising. As even Cariou concedes, however, the district court’s legal premise was not correct. The law imposes no requirement that a work comment on the original or its author in order to be considered transformative, and a secondary work may constitute a fair use even if it serves some purpose other than those (criticism, comment, news reporting, teaching, scholarship, and research) identified in the preamble to the statute. Instead, as the Supreme Court as well as decisions from our court have emphasized, to qualify as a fair use, a new work generally must alter the original with “new expression, meaning, or message.” Campbell, 510 U.S. at 579…………………………