Sunday, October 2, 2022

Richard Prince and Gagosian Lose Copyright Battle

Although this New York district court decision will most likely be appealed, it does give credence to my theory that courts are increasingly becoming agitated with this “free-for-all” mentality of certain artists when it comes to appropriating and commercializing off of other artists’ works.

I can’t comment much on this case, but I will remind the reader that a while ago photographer Patrick Cariou sued Richard Prince for copyright infringement. Why? Prince was using Cariou’s photographs without consent or compensation to Cariou to make paintings, some of which were not very transformative. Long story short, on Friday, March 18th, Judge Deborah Batts handed down her decision, finding that “the Court finds (1) that
[Richard Prince, Gagosian Gallery, Lawrence Gagosian, and Rizzoli Publications’] infringing use of [Cariou’s] copyrighted photographs was not fair use under the Copyright Act[.]”

Judge Batts also seems to be carving new ground by indicating that Gagosian’s sales of Prince’s paintings, “for a total of $10,480,000.00, 60% of which went to Prince and 40% of which went to Gagosian Gallery. Seven other Canal Zone Paintings were exchanged for art with an estimated value between $6,000,000.00 and $8,000,000.00 …was also substantially commercial, especially where the Gagosian Defendants are concerned.”

Are New York courts starting to eradicate the “fine art” vs. “commercial art” distinction they seem to hold dear?

Batts followed with this right hook to the kidney:

That Defendants [Richard Prince, Gagosian, and Rizzoli] shall within ten days of the date of this Order deliver up for impounding, destruction, or other disposition, as Plaintiff determines, all infringing copies of the Photographs, including the Paintings and unsold copies of the Canal Zone exhibition book, in their possession, custody, or control and all transparencies, plates, masters, tapes, film negatives, discs, and other articles for making such infringing copies. That Defendants shall notify in writing any current or future owners of the Paintings of whom they are or become aware that the Paintings infringe the copyright in the Photographs, that the Paintings were not lawfully made under the Copyright Act of 1976, and that the Paintings cannot lawfully be displayed under 17 U.S.C. § 109(c).

You can read more on this over at APhotoEditor.

UPDATE: March 22, 2010:

I’ve had some people e-mail me asking why I side with Prince. I don’t. I believe Judge Batts was correct — and on-point — on her analysis of this case, and that Prince did infringe Cariou’s copyrights. This is a good decision for visual artists, especially those that have their work “lifted” by other artists with a more direct connection to the art market. I hope this is clear enough.


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Comments: 5

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  • MarcW

    That language is pretty typical in a copyright infringement case. What did you think happened to infringing works, they had a little sticker put on them that says, “Bad Artist!” and then put back on the shelf?

    A thief cannot give good title. Nobody has the right to possess stolen property. This isn’t a new development in the legal world.

  • Robert Panzer

    “I can’t comment much on this case” Why not? It seems to me that this is a pretty important case. Your comments are usually spot on. Are you connected to it in some way?

  • Marc,
    Of course, but as I’m sure you know, the “artworld” functions under its own rules and norms. Mix this with the fact that most people don’t know how copyright works and you can certainly understand why a collector would be shocked to learn she has an unlawfully made art work.

  • MarcW

    Esteemed Host:

    Of course, and if I feel bad for anybody on that end it’s the innocent buyers. Bad taste is not a moral justification for what’s about to happen to them, and I hope they all sue Prince et al for the price of their now-unlawful purchases.

    I just thought the “insult and injury” language was a little strong, since it’s neither, it’s merely the usual and customary action, phrased in its usual and customary way, when a finding of copyright infringement is made. :)

  • JonathanT

    Many people commenting out there seem to think that decision conflicts with Blanch v. Koons. I don’t agree – the work in question in Koons only incorporated part of the original Blanch photo, and then combined it with a number of other images. This seems to go on the other end of the spectrum – Prince basically copied the photo and added very little. Still, I think it strange that at some point a judge will have to decide a case between these extremes.

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