The issue of copyright infringement and fair use concerning visual art has been a hot topic as of late. When said issues are discussed it is common for individuals to defend the alleged infringer by mentioning names of artists who have ‘sampled’ or ‘referenced’ copyright protected works in order to support the validity of the practice as well as to solidify it as mere fair use. Richard Prince is often one of the names used to defend aspects of fair use during debates about copyright and infringement. That may no longer be the case if photographer Patrick Cariou has anything to say about it.
Patrick Cariou has filed a lawsuit against Richard Prince claiming that photographs used by Prince for a series of collages were illegally borrowed from his book Yes Rasta-- which was registered in 2001. Cariou claims that his photographs were illegally used in at least twenty collages exhibited by Gagosian Gallery in 2008. Cariou did not stop with just Richard Prince-- the suit, which was filed in a U.S. federal court in December, also targets the Gagosian Gallery, the owner of the gallery Lawrence Gagosian, and the publisher of the exhibit catalogue, Rizzoli. Cariou’s suit claims that all parties were involved in the infringement.
Cariou learned of the alleged infringement after the Richard Prince exhibit at Gagosian Gallery opened in New York in 2008. Upon viewing the images and press materials the photographer promptly sent a cease-and-desist letter to the gallery. However, the gallery did not acknowledge Cariou’s letter-- the exhibit did not close until the scheduled closing date. Since then the photographer has researched the extent of the alleged infringement. In fact, the lawsuit is using the words of Prince and Gagosian to support the infringement claim. The lawsuit cites interviews and press releases that state that Prince had scanned images from a book-- Patrick Cariou claims that the book mentioned was his book, Yes Rasta.
In the suit Cariou demands that the unsold artworks and exhibit catalogues be destroyed. He also demands that the owners of the sold paintings be informed that it is illegal to display the work-- which means that if the court sides with the photographer you will be hard pressed to find the collages exhibited in a public collection. Needless to say, this case could be groundbreaking in that it will establish some order concerning fair use-- either for or against it. If the court sides with Cariou and his demands are honored it would mean that there will be drastic changes in the art world. Gallerists, curators, and publishers may think twice before promoting an artist with a history of copyright infringement allegations. A ruling in favor of Cariou would no doubt open the door for others to file against alleged copyright infringers.
Individuals within the art law community have suggested that the outcome of this case-- if it goes to court-- will help to define what exactly fair use is. The case may set the standard for how fair use can be used in defending against allegations of copyright infringement. Currently a work of art that “transforms” a copyright protected image can be ruled permissible under “fair use”. However, that is not always the case. That is why this ruling will be groundbreaking-- the judge may help to define the point at which an artwork is "transformative" or not.
Links of Interest:
Photographer Patrick Cariou Sues Richard Prince for Copyright Infringement -- Photo District News
Color This Area of the Law Gray -- The Wall Street Journal
Lawsuit filed against Richard Prince -- The Art Newspaper
Take care, Stay true,
New York Art Exchange