EVENT: A conversation with Patrick Cariou's attorney

Volunteer Lawyers for the Arts has invited Patrick Cariou's attorney, Dan Brooks, to speak with Sergio Sarmiento to discuss the case Cariou vs. Prince. If you're interested in copyright infringement and appropriation art and where the law draws the line between the two, the conference is likely to appeal to you. Details here and background here. It's unclear whether Dan Brooks will also discuss the claim against Larry Gagosian and Gagosian Gallery but I hope he does as the liability of intermediaries is another important and fascinating aspect of copyright infringement.

Notes from "A Conversation with Dan Brooks"

On April 20, the VLA hosted a talk with Dan Brooks ("DB"), attorney to Patrick Cariou in Cariou v. Prince, to discuss the case and the intersection between copyright laws and appropriation art generally. Here are some notes on what was said that evening:

• Failure to register an artwork such as a photograph does not mean the work is completely void of copyright protection. However, damages would be limited to actual damages - statutory and special damages would not be awarded, nor would disgorgement of profits or reimbursement of attorneys fees (injunctive relief may still be available though).
• Likewise, the court quickly dismissed Prince's initial argument that Cariou's works comprising the series "Yes, Rasta" were not copyright protected because, by merely documenting facts, they didn't constitute "original" works ("factual" statements and "ideas" are not protected). It was clear that Cariou worked relentlessly to capture the shot he wanted and a lot of thought went into the subject matter, the lighting and the composition of the (original) photos.
• Interestingly, the court considered the series "Canal Zone" as a whole when determining whether Prince could successfully avail himself of the affirmative defense of "fair use" (following a finding that the defendant has as a matter of law committed copyright infringement). DB did say though that it's likely the works will be considered individually at the sentencing proceeding (yet to take place).
• One way to think about the "fair use" defense is essentially as the recognition at law that most things are not "new" but rather build on what has come before, whether it be literature, visual arts, music etc.
• Most of the cases are decided as motions for summary judgment (so by a single district court judge) since there are hardly, if any, genuine disputes of material fact (i.e., those that are outcome-determinative) that need to go to a jury -- most of the evidence is with the plaintiff and the defendant themselves. Only they really know the facts pertinent to the four prongs of the test...
• ... Ironically this implies that the law puts a not insignificant premium on perjury. And hiring a top lawyer to draft the party's affidavit in light of the weight it carries in these cases.
• In summarising "fair use" case law to date, DB said the first prong (the purpose and character of the use, including whether the use is of a commercial nature) of the four-prong "fair use" test is still the most important and while the list is not intended to be exhaustive, in practice it is. Crucially too, the use must relate back to one or more of the 6 permitted uses in the lead-in to s.107: criticism, comment, news reporting, teaching, scholarship or research.
• The third prong regarding "the amount and substantially of the portion used" is measured against the original work, not the second work i.e., it is no defense to point to how much of the allegedly infringing work is original and not appropriated. Rather, the court looks at how substantial what was taken is as a proportion of the original work.
• The "Blanch" case is the only time an appropriation artist has successfully argued the "fair use" defense.
• The Cariou v. Prince decision is, as the VLA's Sergio Sarmiento put it, above all a decision in favor of art criticism for it forces appropriation artists to think about and articulate what and why they have created the work the subject of the litigation (probably to the dismay of some artists). US copyright law does not distinguish appropriation artists from among artists generally and it is not enough for a defendant artist to merely argue that he/she is an "appropriation" artist and therefore not guilty of copyright infringement. As Sergio said, that's just a "ploy" -- we're no longer in the 70s!

Donn Zaretsky of The Art Law blog (whom I had the huge pleasure of meeting at the event) has posted some links to commentary on the case: see here for artist Brian Dupont's views and here for law firm Sullivan and Worcester's analysis.

Cariou expected to appeal to Supreme Court and bid the Court to offer clear guidance on what qualifies as "transformative" for purposes of "fair use"

WASHINGTON D.C./NEW YORK. The photographer Patrick Cariou is expected to file an appeal with the Supreme Court following the Second Circuit Court of Appeals' refusal earlier this month to rehear (en banc) his copyright infringement claim against Richard Prince. For background on the litigation see here, here and here.

 

The Supreme Court is of course the highest federal appellate court in the United States and its appellate jurisdiction is largely discretionary. Statistically, the odds are very much against Cariou but as his lawyer Dan Brooks says, if the Court agrees with the photographer that the law on the "fair use" exception to copyright infringement (in particular regarding what qualifies as a "transformative" work) needs to be settled or it thinks "there is a conflict between the circuits, they may agree to hear the case."