Monday, March 4, 2024

Photographers and artists file brief in support of Patrick Cariou

Prince Cowboy

You didn’t think we would hit 2014 without hearing about the Cariou v. Prince case again, did you?

The American Photographic Artists, the American Society of Journalists and Authors, the American Society of Media Photographers, the Graphic Artists Guild, the National Press Photographers Association, the Picture Archive Council of America and the Professional Photographers of America have filed a “friend of the court” brief in support of Patrick Cariou. (pdf version)

Here’s a taste,

Prince took Cariou’s photographs and displayed them as his own in his Five Paintings. He did not avail himself of any avenues by which he could easily have obtained permission to use Cariou’s creations or other readily licensable images. He minimally altered the photographs; it was a bare display of Cariou’s original work. As a result, Prince also usurped Cariou’s right to control the marketing and exposure of Cariou’s original aesthetic vision. Defendants and the Warhol Foundation propose an application of the “reasonable person” standard that would not even require modification of the original photographs’ aesthetic in any way. Such a standard would permit appropriating artists to circumvent the available licensing systems, knowing that a standard that permits simple after-the-fact rationalization for appropriation as a “fair use” defense forecloses many less-endowed visual artists from fighting them in the courts.

In short, such a standard deprives copyright owners of both their original copyrighted vision, as well as the additional valuable property rights conferred by the statutory scheme. Photographers, and all creators of original work, should not be deprived of their work’s value on the basis of appropriation.

The brief clearly stakes a political position, arguing what I’ve been detailing all along; that the true nature of this case is class-based. Ironically, it pits the 99% vs. the 1%, but unveils what many in the artlaw and art community don’t want to accept, that they are (the gross majority) not only financial elitists, but more so also part of the 1% (if not in wealth, then at least certainly in ideology).

The standard articulated by the Warhol Foundation would create an unwarranted safe harbor around a small coterie of well-connected elite artists who sell their works for extraordinary prices, at the expense of the greater community of working artists. Instead of resorting to an examination of hypothetical and elitist views, rather, what should determine whether there is a “transformation” in the fair use sense here under the reasonable person test should be based on the application of common observation skills to determine whether the appropriating artist, in the course of committing copyright infringement, has made something which is beyond the economic goal of the Copyright Act to compensate the original authors and protect their right to control who makes copies and derivative works.

And here’s a bit on how the Warhol Foundation’s reliance on “expert testimony” will end up hurting working artists even more:

The Warhol Foundation proposes a standard whereby seemingly identical pieces will not be treated as unexcused infringements, but will be distinguished by a series of expert reports and costly testimony. These increased costs magnify the harm to the original artists; who frequently have no choice but to stand by while the copyright in their works are violated brazenly, as the costs of litigation outweigh any potential remedy the legal system can provide currently.

This standard would permit visual artists with connections in the artistic world to take visually powerful photographs, like those used in the Five Paintings, and simply redisplay them, either as paintings with minor modifications, or with no modifications at all but in a new setting. Sanctioning such an approach would permit appropriators to sell the original creator’s aesthetic in a new medium without compensating the creator.

The brief was written by David Leichtman and Hillel Parness of the New York law firm of Robins, Kaplan, Miller & Ceresi. I’ve worked with both David and Hillel on “friend of the court” briefs before, and they are great minds. This should get interesting.


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