Sunday, July 12, 2020

Yes Rasta. Yes Fair Use?

Controversy regarding Patrick Cariou’s lawsuit against Richard Prince for his use of Cariou’s copyrighted material continues. The Art Newspaper reported yesterday:

French photographer Patrick Cariou has launched a lawsuit against Richard Prince, claiming that the artist improperly lifted images from Cariou’s photographic survey of Rastafarian culture for a recent series of paintings. The suit, filed in New York, also names as defendants Larry Gagosian, Prince’s dealer who displayed the series in a recent show titled “Canal Zone”, and publishing house Rizzoli, which co-produced the catalogue. In addition to seeking unspecified damages for copyright infringement, the lawsuit also demands the “impounding, destruction, or other disposition” of all of the paintings, unsold catalogues and preparatory materials involved in the making of the works.

Donn Zaretsky has an interesting take regarding what seems to be an overzealous use and citation of another previous copyright infringement case against Jeff Koons (Blanch v. Koons), stating that the Koons case is not a “get-out-of-jail-free card.”

But what about the Rogers v. Koons case? We noted a crucial difference between Rogers and Blanch here.

Although this may signal to some a reversal of Rogers v. Koons, where Koons had a sculpture made based on a copyrighted postcard image, the Second Circuit was clear to announce that in Blanch, the transformative use and lack of market harm to Blanch were aided by Koons’ commentary on the copyrighted work. Conversely, in Rogers, Koons failed to show any commentary while evidencing complete and willful disregard for the copyrighted postcard image and its notation (©). What seems to be crucial in the Blanch case, as noted by the Second Circuit, was that Blanch not only failed to show market harm but also that she sought copyright protection only after she saw Koons’ painting on exhibition, indicating a clear desire for a monetary windfall.


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