Supreme Court Passes on Art 'Appropriation' Copyright Case

, The Litigation Daily

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Without explaining its reasoning, the U.S. Supreme Court on Tuesday denied cert in Cariou v. Prince, a copyright battle that's been closely watched in the art world. By refusing to hear arguments in the case, the high court preserved an important appeals court ruling in Richard Prince's favor that took a broad view of the "fair use" defense to copyright infringement.

Patrick Cariou, a French photographer, traveled to Jamaica in the 1990s and photographed Rastafarians living in the mountains. In 2000, Cariou published about 100 of his black-and-white portraits in a book titled "Yes Rasta." In the years that followed, Prince "appropriated" and altered dozens of Cariou's photographs (you can see a side-by-side comparison here and here). Prince exhibited his works at the famed Gagosian Gallery in 2008, and the pieces generated $18 million in sales.

Cariou's longtime lawyer, Daniel Brooks of Schnader Harrison Segal & Lewis, sued Prince for copyright infringement in December 2008. Prince countered with a fair use defense, arguing that his appropriation was "transformative."

U.S. District Judge Deborah Batts in the Southern District of New York sided with Cariou's lawyer on summary judgment in 2011. In a decision that split both the arts and intellectual property communities, she ruled that Prince's work wasn't transformative because it didn't "comment on, relate to the historical context of, or critically refer back to the original works."

Prince brought on Boies, Schiller & Flexner for an appeal to the U.S. Court of Appeals for the Second Circuit. The court reversed Batts on April 25, finding that "the law imposes no requirement that a work comment on the original or its author in other to be considered transformative." The proper test, the court wrote in its 2-1 decision, is whether the new works would be "reasonably perceived" to imbue the originals with "new expression, meaning, or message." Applying this framework, the circuit granted summary judgment to Prince as to 25 of the 30 works at issue, but remanded the case so that Batts could weigh in on the other five works.

Boies Schiller associate Josh Schiller handled the Second Circuit oral argument for Prince. It was his appellate oral argument debut, as we explained in this Q&A following the appeals court ruling.

Schiller said Tuesday that the Supreme Court's decision not to hear the case "reassures artists around the world, not just New York, that they don't have to justify … an artwork in order for that artwork to be recognized as a fair use."

Cariou's longtime lawyers at Schnader Harrison appealed to the Supreme Court in April. They wrote in their petition that "by focusing only on what is judicially perceivable, and disregarding Prince's testimony about why he took Cariou's specific Photographs, the Second Circuit majority required no justification, persuasive or otherwise, from Prince as to why he appropriated the particular Photographs he took from Yes Rasta."

Cariou drew amicus support for his cert bid from the New York Intellectual Property Law Association and its lawyers at Amster Rothstein & Ebenstein and Robins Kaplan Miller & Ciresi.

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