Cariou v. Prince: Trial or Settlement

According to The Art Newspaper, lawyers for Richard Prince and his dealer Larry Gagosian have responded to a copyright-infringement lawsuit filed by French photographer Patrick Cariou, vigorously arguing that Prince’s appropriation of Cariou’s photographs of Rastafarians for a recent series of paintings is protected under the US doctrine of “fair use”.

In a very smart (and seemingly unique way), Prince and Gagosian are countering Cariou’s claims of copyright infringement by attacking each of the so-called “fair-use” factors. As a reminder, the four factors are:

1. Purpose and Character of Use (ex: parody; nonprofit educational use)

2. Nature of Prior Work (factual vs. fictional)

3. Amount and Substantiality Used (ex: does it go to the heart of the matter?)

4. Market Effect (usually plays the largest role)

Prince and Gagosian argue that Cariou’s photographs are “factually based,” in an attempt to minimize factor #2 (fictional works get stronger protection). They also argue that Prince took a “small portion” of the photographs, again trying to diminish factor #3 (however, factor #3 should not be read in terms of amount, but rather whether or not the amount taken goes to the heart of the matter). They further argue that “the creation and exhibition of Prince’s works was not commercially exploitative,” intending to weaken factor #4, which in large part carries the most weight for most U.S. federal judges. Finally, Prince and Gagosian argue that Prince’s work “comments upon certain aspects of culture,” reinforcing their claim that Prince’s work is social and critical commentary with a public purpose.

These are very strong and to-the-point arguments. One wonders why they have extended a settlment gesture to Cariou. Copyright litigation suits can be not only financially draining, but emotionally and psychologically devastating, not to mention time-consuming. Nevertheless, according to Cariou he’s willing to settle, but only if it’s “a big number we’re talking about.”

For our two previous posts on this lawsuit, see here and here.

Tags: Patrick Cariou, Richard Prince