Fair use ruling for Richard Prince stands, Supreme Court declines to hear Patrick Cariou’s appeal

richard-prince-ile-de-france-canal-zoneThe US Supreme Court has declined to hear Patrick Cariou’s appeal requesting a rehearing of his case against Richard Prince. The decision came one week after district court Judge Deborah Batts* accepted amicus briefs from the Andy Warhol Foundation for the Visual Arts and the Rauschenberg Foundation encouraging consideration of the opinions of art historians and the broader art community when deciding whether Prince’s “Canal Zone” series infringed on Cariou’s copyright.

It’s not over until it’s over. The Second Court of Appeals found fair use for only 25 of 30 of Prince’s paintings. The remaining 5 have been sent back to Judge Batts to determine whether they are sufficiently “transformative” to be deemed fair use.  The Art Newspaper reported at the time of the Second Circuit’s decision that:

“Josh Schiller of Boies, Schiller & Flexner LLP, Prince’s law firm, says in a statement that he looks forward to presenting evidence that the remaining five works fall under fair use. Quoting from the judges’ decision, he says the paintings “move ‘in a different direction from Cariou’s classical portraiture and landscape photos,’ contain ‘key differences in those artworks compared to the photographs they incorporate,’ and appeal to an entirely different audience and ‘to an entirely different sort of collector than Cariou’s’.”

Since criticism and commentary are among the types of speech most protected by US courts, do you agree that the postmodern movement known as appropriation art (which comments both on the nature of art and mass culture) should automatically qualify for fair use?

*This post originally said that the US Supreme Court accepted the amicus briefs. Hat tip to Marcia Semmes, Executive Director of Maryland Volunteer Lawyers for the Arts.