Second Circuit Holds that Appropriation Art Constitutes Fair Use

In a recent decision, Cariou v. Prince¹, the Second Circuit held that 25 works of appropriation art that incorporated original copyrighted photographs constituted fair use under the Copyright Act, 17 U.S.C. § 107. Appropriation art is the “more of less direct taking over into a work of art a real object or even an existing work of art.”²

In this action, defendant Prince took Cariou’s photographs and incorporated them into 30 works. Images of the 30 works and the corresponding Cariou photographs used are available through the Second Circuit’s website:
http://www.ca2.uscourts.gov/11-1197apx.htm.

Cariou sued for copyright infringement and the district court granted Cariou summary judgment, holding that no reasonable jury could find Prince’s work to be fair use. The Second Circuit reversed in part, vacated in part and remanded for further proceedings.

The Second Circuit’s analysis focused on the four non-exclusive fair use factors provided in the Copyright Act: (i) the purpose and character of the use, including whether the use is commercial or for nonprofit educational purposes; (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 the value of the copyrighted work.

Under the first standard, the Second Circuit found that 25 of the 30 works were transformative because they “manifest an entirely different aesthetic from Cariou’s photographs.”³ The court focused on the differences between the two artists’ “composition, presentation, scale, color palette, and media.”

Under the second factor, the Second Circuit acknowledged that Cariou’s work was both creative and published, which weighted against a finding of fair use, but noted that this factor is of less importance where, as here, the work is used for a transformative purpose.⁴

Under the third factor, even though Prince used all or substantially all of Cariou’s photographs in some of his works, the Second Circuit held that this does not necessarily weigh against fair use because the copying of the entirely of a work is sometimes necessary to make a fair use of the image. In this case, Prince’s 25 works transformed Cariou’s photographs into “something new and different.”⁵

Lastly, under the fourth factor, the Second Circuit focused on whether the secondary work usurps the market of the original work. An alleged infringer usurps the market of the original work and its derivatives when the target audience and the nature of the infringing content are the same as the original. In this case, the Second Circuit found that Prince’s work appeals to “an entirely different sort of collector than Cariou’s” work and that this factor weighs in favor of Prince.⁶

With respect to five of the 30 works at issue, the Second Circuit remanded the case back to the district court for further proceedings.

¹ Cariou v. Prince, Case No. 11-CV-1197, 2013 WL 1760521 (2d Cir. April 25, 213).
² Cariou, 2013 WL 1760521, at *2.
³ Id. at *6.
⁴ Id. at *9.
⁵ Id. at *10.
⁶ Id. at *9.