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.”

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