Judicial Activism and the Return of Formalism in the Cariou v. Prince Decision

The Cariou v. Prince decision was handed down last Thursday. I have struggled with what to write primarily because I have been shocked into a catatonic state. How two intelligent minds could draft such an epic disaster is beyond any form of comprehension.

One would hope that after eleven months of deliberation and critical analysis we would have been given something more than 23 pages of judicial poetry. Am I enraged? No. I would be had the opinion been written by the cast of 30 Rock. Am I disappointed? No. I would have had the 2nd Circuit remanded all 30 works to the District Court and Judge Batts had concluded that all 30 works were fair use applying the correct procedural and judicial standard. Put simply, I am numb. I am speechless as to what this says about judicial review, and I am disheartened about what this will promote in cultural production.

As many of you know I founded The Art & Law Program in 2010, a weekly seminar series with a focus on introducing artists to law and jurisprudence (among which are reasoned thought and analysis by intellectuals such as Oliver Wendell Holmes, Felix Frankfurter, Learned Hand, Richard Posner, Antonin Scalia, Akil Rheed Amar, Alexander Meikeljohn and Eugene Volokh).

I use the writings by thinkers like those listed above in The Art & Law Program as sources to expand and strengthen artistic thought and intent, and by definition, cultural production. It was also my hope that I could point to legal opinions written by state or federal judges as specimens of well-reasoned arguments and legal principles. In a nutshell, to a better understanding of the construction of democracy.

Unfortunately, opinions like Kelley v. Chicago Park District (both the district court’s and 7th Circuit’s), Judge Ponsor’s Mass MoCA v. Buchel opinion, and now Parker and Hall’s 2nd Circuit Cariou v. Prince opinion leave me in a quandary. If the sources one was faithfully referencing prove to be discombobulated, what is one to do?

With this question in mind, I will try to tease out what I see as problematic in the Cariou v. Prince 2nd Circuit opinion, which I break down into artistic and legal aspects. These two aspects are not necessarily exclusive of each other.

I. Law: “The majority … employ[s] its own artistic judgment.”

The dissenting judge, Clifford Wallace, rightly argues that “after correcting an erroneous legal standard employed by the district court (ie- Judge Batts), we would remand for reconsideration.” However, he goes on to note, “the majority short-circuits this time-tested search for a just result under the law.” [italics added]

That’s the part the pro-Prince groupies don’t want to hear. And I probably wouldn’t either if the referees in a basketball game added time to the game-clock so as to allow my favorite team to win. Alfred Steiner, commenting for Donn Zaretsky’s blog, believes that by engaging in judicial activism the 2nd Circuit did the right thing because otherwise they would have made a “judicially conservative move.” If correct is correct, who cares if it’s “conservative”? I do remind Mr. Steiner of Supreme Court Justice Antonin Scalia’s quoting of Robert F. Kennedy, “Some men see things as they are and ask why. Others dream things that never were and ask why not?’; that outlook has become a far too common and destructive approach to interpreting the law.”

Page 1 of 4 | Next page