Richard Prince & Fair Use

Controversial appropriation artist Richard Prince is appealing his loss to Patrick Cariou in a hot-button copyright case turning on the district court’s interpretation of “transformative use” under the Copyright Act. Patrick Cariou prevailed last winter by successfully arguing that Prince’s use of 41 of his photographs in a series of collages and paintings was not sufficiently transformative to avoid liability for infringement under the affirmative defense of fair use. Judge Deborah A. Batts of the Southern District of New York held that the collages and paintings in Prince’s “Canal Zone” series were not transformative because they did not “comment on, relate to the historical context of, or critically refer back to the original works.” Appellate review of this case could have implications beyond appropriation art. A decision from the U.S. Court of Appeals for the Second Circuit, which has decided many important copyright cases in the past, could clarify–or further obscure–the meaning and application of the fair use provision of the Copyright Act.

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