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.