Tuesday, March 22, 2011

"Deliver up for impounding, destruction, or other disposition, as Plaintiff determines, all infringing copies of the photographs"

 Left, a photo of a Rastafarian from Patrick Cariou's "Yes, Rasta"
and, right, a painting from Richard Prince's Canal Zone series
A US District judge has granted photographer Patrick Cariou's motion for summary judgment on the issue of copyright infringement by defendants Richard Prince, Larry Gagosian, Gagosian Gallery and Rizzoli books. Prince had admitted "to using at least 41 photographs from Yes, Rasta" but pleaded, unsuccessfully, "fair use." The doctrine of "fair use" is one of the more important limitations on copyright(developed through case law over the years and codified in § 107 of Title 17, U.S. Code). The section lists the various purposes for which a protected work may be reproduced without infringing the owner's copyright in such work. Uses considered "fair" include (the list is non-exhaustive) "criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research." Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair: (i) the purpose and character of the use (including whether such use is commercial in nature or non-profit), (ii) the nature of the copyrighted work, (iii) the amount and substantiality of the portion used in relation to the copyrighted work as a whole and (iv) the effect of the use upon the potential market for, or value of, the copyrighted work.

There is no clear distinction between a use that is fair and one that constitutes copyright infringement but in this case, it's not hard to see why the defense didn't excuse Prince's use of Cariou's photographs. The use did not fall within any one of the purposes in § 107, the reproduction was hardly transformative (Cariou's photographs are easily recognizable in the Canal Zone Series photographs), it was purely commercial ("the less transformative a work, the more important its commerciality becomes") and the Canal Zone series was likely to have a direct impact on the market for the photographs comprising Yes, Rasta.  

Perhaps more interesting is the claim asserted against Larry Gagosian and his eponymous gallery. Intermediaries, though not using the copyrighted work directly, can nevertheless be found liable by distributing images that infringe copyright. All Gagosian defendants were held to be "vicarious and contributory infringers" after the judge ruled the they had "at the very least the right and ability (and perhaps even responsibility) to ensure Prince obtained licenses." The judge added: "the financial benefit of the infringing use to the Gagosian defendants is self-evident." A tough couple of weeks for Gagosian who just got sued by Robert Wylde for selling him a painting to which the seller did not have clear and unencumbered title (see here). Evidence is quickly mounting that Gagosian should adopt higher standards in the conduct of his gallery business (which we will undoubtedly learn more about in due course as the Wylde litigation proceeds).

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