Photographers and artists file brief in support of Patrick Cariou

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.