Sunday, October 2, 2022

Judge Grants Warhol and Rauschenberg Foundations Permission to File ‘Friend of Court’ Brief in Cariou-Prince Case


Yesterday, Judge Batts granted the Warhol Foundation and the Rauschenberg Foundation permission to file their amicus brief (“friend of the court” brief) in support of Richard Prince. Their amicus brief alleges that when it comes to appropriation art, only true experts such as art historians and critics in the field of contemporary art can tell whether a work is transformative or derivative. This is interesting, given that the “true expert” should be the artist appropriating copyrighted work, not art historians or art critics. But, of course, that’s irrelevant; why bother going straight to the source.

Cariou’s counsel, Dan Brooks, filed a declaration and memo of law requesting that the Court either reconsider its order, or, alternatively, disregard the arguments made by the Foundations. I’ve summarized Brooks’ main arguments below, which are certainly worth a read. Also of note, and referencing Brooks’ fourth and final argument, is that Nicholas Gravante Jr., a partner and general counsel to the law firm of Boies Schiller, the same law firm representing Richard Prince, is also counsel to The Andy Warhol Foundation.

First, defendants have conclusively waived their right to put on expert testimony in this case. According to the Foundations, “the Court should consider reliable expert evidence from within the broader art community.” According to the Foundations, the only “reasonable observers” are experts, such as the two experts very belatedly produced by defendants, who inhabit the inbred, commercialized, postmodern art world and “who [are] presumed to possess a certain level of information that all citizens might not share.”  This unfounded, elitist view of the universe of “reasonable observers” overlooks the reality that defendants have conclusively waived their right to put on expert testimony in this case, by failing to comply with this Court’s June 19, 2009 Scheduling Order and by failing, after the Court barred them from presenting expert testimony due to their non-compliance, to appeal that order as an abuse of discretion.

Second, the Foundations disagree with the Second Circuit’s fair use standard and want Judge Batts to employ a different standard. Remember that the Second Circuit’s fair use standard held that the transformative nature of a secondary work should be determined exclusively by judicial observation of how it may “reasonably be perceived,” and that all that was needed to determine fair use was the original and the secondary Work, “viewed side-by-side.”

The  Foundations want Judge Batts to disregard the Second Circuit’s “proper standard,” asserting that: “[a] follow-on Work’s uniqueness of meaning, and thus its transformative purpose and character, are not always easily determined upon initial inspection and comparison with the Work allegedly infringed”; an “artwork’s meaning” can only be understood “by reference to art history, art theory, and an identification of the relevant audience for the Work”; a secondary Work can be transformative “even where the primary and secondary artworks appear virtually indistinguishable”; “assessing transformative use in the visual arts context cannot therefore be easily reducible to mere image-matching”; and “nor is the Court itself the reasonable observer of those Works.”

Since Judge Batts was directed by the three federal judges sitting on the Second Circuit to apply the “proper standard,” the Foundations’ views will not be helpful to the Court.

Third, the Foundations brief is not a “friend of the court” brief but rather a “friend of Richard Prince” brief. It is apparent, given the amount of time the Foundations undoubtedly needed to prepare their proposed brief, that they had advance knowledge of defendants’ contentions and of the identity of defendants’ experts, whose credentials the Foundations extol. This type of coordination bespeaks a partisan devotion to one side that is inconsistent with being a “friend of the court,” rather than of one party.

The Foundations’ proposed brief is itself partisan and slanted. For example, the Foundations claim that a secondary work that is “visually indistinguishable” from an original is still transformative if it recontextualizes the original. To support this proposition, the Foundations cite Sherrie Levine’s rephotography of Walker Evans’s Depression-era photographs, After Walker Evans, which Levine supposedly displayed “as her own Work.” However, as reported in an article by Laura Gilbert in the May 2012 edition of The Art Newspaper, at a Levine retrospective at the Whitney Museum of American Art (one of the museums that signed Exhibit A to the Foundations’ brief, a letter supporting that brief), due to objections by the Walker Evans Estate, Levine’s “photograph of Evans’s historic portrait of Depression-era sharecropper Allie Mae Burroughs (After Walker Evans: 4, 1981), in fact, appeared in a Whitney brochure during the retrospective as copyright ofthe Walker Evans Estate, not Levine.” Levine also agreed only to display the art work, but not offer it for sale. Levine also agreed, due to a dispute with the Estate of Edward Weston, not to exhibit her other Well-known series of rephotography, After Edward Weston. A brief containing an omission of this sort (which must have been known to the Whitney Museum) gives the appearance of partisan advocacy and will not be helpful to the Court on this remand.

Finally, one of the proposed “friend of the court”, the Warhol Foundation, has been represented in major litigation by Prince’s current law firm (see Simon-Whelan v. The Andy Warhol Found For the Visual Arts, Inc and also Thompson v. The Andy Warhol Found for the Visual Arts), creating an additional appearance of partisanship. Notably, in the Second Circuit proceedings in this case, the Warhol Foundation filed not just an amicus brief, but also a reply amicus brief, and also moved unsuccessfully for leave to participate in the oral argument. The Warhol Foundation also evinces a proprietary attitude toward this case, claiming, without any basis, that the Second Circuit “considered” its amicus brief “in rendering its decision.” This claim is based only upon a citation to Cariou, 714 F.3d at 697-98, which merely lists the Warhol Foundation as one of a number of amici which filed briefs in the Second Circuit.

The Foundations’ proposed brief serves no purpose other than to further protract these proceedings, impose additional expenses and litigation burdens upon plaintiff, who is already at a considerable financial disadvantage, and waste this Court’s time with irrelevant musings on the history of postmodern art, contrary to the narrow scope of the Second Circuit’s remand, which requires only a side-by-side comparison ofthe five paintings and source photographs in order to determine whether the reasonably perceivable differences are sufñcient to render the paintings “transforrnative.”


Here is the amicus brief (pdf format).


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Comments: 2

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  • thanks. so many problems here, but something that you may have already addressed in a different place (maybe) is at what point does an artwork require expert testimony to determine transformativeness. wouldn’t a judge need to establish some sort of threshold where an amicus brief is seen to be needed? wouldn’t this mess up the long-standing judicial position to not play art critic? also, as a practical matter, what effect would such an amicus brief have on the proceedings?

  • Sergio

    Apologies for the belated reply. Good questions, as always. I think in this case, the ‘transformativeness’ is a question for the jury, and in this case I think it would help Cariou.

    As I note briefly on my post, why not go directly to the source, the artist, for ‘intent’?

    The problem also is that the Foundations want ‘experts’ to fill in for the reasonable observer, and I can’t think of a more unreasonable observer than an art historian/critic. It’s like putting the fox in charge of the hen, as the saying says.



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