Patrick Cariou v. Richard Prince

The district court used an unduly narrow rule by requiring Prince’s works to comment on Cariou or the Yes Rasta photographs. Section 107’s listed examples of criticism, comment, news reporting, teaching, scholarship, and research are illustrative rather than exhaustive. Fair use instead asks, in context, whether allowing the use better serves copyright’s constitutional purpose of promoting creative progress.

The first fair-use factor asks whether the new work merely supersedes the original or adds a further purpose or different character through new expression, meaning, or message. A work can be transformative when it uses the original as raw material for new aesthetics, insights, or expression, even if it is neither parody nor satire.

The relevant inquiry is how the secondary work may reasonably be perceived, not solely the artist’s claimed purpose or lack of an articulated message. Prince’s deposition statements were relevant evidence, but they were not dispositive. The court could compare the original photographs and Prince’s works directly to assess their objective expressive character.

Viewed side by side with Cariou’s photographs, twenty-five works presented a fundamentally different aesthetic. Cariou’s works were serene, carefully composed black-and-white portraits and landscapes; Prince’s works were much larger, colorful mixed-media collages with distorted forms and disruptive visual elements. Their composition, scale, medium, presentation, and expressive character gave the borrowed images new expression and a different character.

Prince’s use was commercial, but commerciality carried limited weight because the works were highly transformative. The Supreme Court has rejected any presumption that a commercial use is unfair, and the more transformative a work is, the less significance commercial motivation ordinarily has under the first factor.

The fourth factor favored Prince because his works did not usurp Cariou’s actual or reasonably traditional derivative markets. Cariou’s prospective gallery exhibition fell through because the gallery owner mistakenly believed Cariou was collaborating with Prince, not because Prince had substituted for a market for Cariou’s work. Prince’s multimillion-dollar art market and audience also differed sharply from Cariou’s limited market for classical photography, and the record did not show that Cariou would license derivative uses in Prince’s artistic vein.

Cariou’s photographs were creative and therefore lay close to the core of copyright protection, so the nature-of-the-work factor favored Cariou. But that factor had limited force where the published photographs were used for a transformative purpose.

Although Prince sometimes copied substantial portions or even all of a photograph, the amount used was permissible in light of the transformative purpose and the new works’ distinct character. Fair use does not impose a strict rule that an artist take only the minimum necessary. For these twenty-five works, the amount and importance of the material taken did not outweigh their transformation of the source images.

These five works presented closer questions because they retained central aesthetic features of Cariou’s photographs while making comparatively limited alterations. For example, Graduation largely preserved the underlying portrait while adding blue tinting, painted lozenges, enlarged hands, and a guitar; Charlie Company prominently repeated substantially unaltered photographs of a man on a burro.

The alterations arguably changed the works’ tenor and moved them away from Cariou’s classical portraiture, but the court could not confidently determine on the existing record whether they created sufficient new expression, meaning, or message. The district court was better positioned to make that initial fair-use determination under the proper legal rule.

Because the twenty-five works did not infringe Cariou’s copyrights, Gagosian Gallery and Lawrence Gagosian could not be directly, contributorily, or vicariously liable in connection with those works. If the district court found infringement as to any of the five remanded works, it would then need to determine the Gagosian defendants’ potential liability for those particular works.

The court vacated the sweeping injunction. If infringement were ultimately established for any remaining work, the district court would need to reconsider equitable relief under the usual injunction standards. The appellate court also noted the parties’ agreement that destroying Prince’s artworks would be improper and contrary to the public interest.