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Cariou v. Prince

United States Court of Appeals for the Second Circuit

May 21, 2012, Argued; April 25, 2013, Decided

Docket No. 11-1197-cv


 [***1498]   [*698]  Barrington D. Parker, Circuit Judge:

In 2000, Patrick Cariou published Yes Rasta, a book of classical portraits and landscape photographs that he took over the course of six years spent living among Rastafarians in Jamaica. Richard Prince altered and incorporated several of Cariou's Yes Rasta photographs into a series of paintings and collages, called Canal Zone, that he exhibited in 2007 and 2008, first at the Eden Rock hotel in Saint Barthélemy ("St. Barth's") and later at New York's Gagosian Gallery.2 In addition, Gagosian published and sold an exhibition catalog that contained reproductions of Prince's paintings and images from Prince's workshop.

Cariou sued Prince and Gagosian, alleging that Prince's Canal Zone works and exhibition catalog infringed on Cariou's copyrights in the incorporated Yes Rasta  [**4] photographs. The defendants raised a fair use defense. After the parties cross-moved for summary judgment, the United States District Court for the Southern District of New York (Batts, J.) granted Cariou's motion, denied the defendants', and entered a permanent injunction. It compelled the defendants to deliver to Cariou all infringing works that had not yet been sold, for him to destroy, sell, or otherwise dispose of.

Prince and Gagosian principally contend on appeal that Prince's work is transformative and constitutes fair use of Cariou's copyrighted  [***1499]  photographs, and that the district court imposed an incorrect legal standard when it concluded that, in order to qualify for a fair use defense, Prince's work must "comment on Cariou, on Cariou's Photos, or on aspects of popular culture closely associated with Cariou or the Photos." Cariou v. Prince, 784 F. Supp. 2d 337, 349 (S.D.N.Y. 2011). We agree with Appellants that the law does not require that a secondary use comment on the original artist or work, or popular culture, and we conclude that twenty-five of Prince's artworks do make fair use Cariou's copyrighted  [*699]  photographs. With regard to the remaining five artworks, we remand to  [**5] the district court, applying the proper standard, to consider in the first instance whether Prince is entitled to a fair use defense.3


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714 F.3d 694 *; 2013 U.S. App. LEXIS 8380 **; 106 U.S.P.Q.2D (BNA) 1497 ***; Copy. L. Rep. (CCH) P30,416; 2013 WL 1760521

PATRICK CARIOU, Plaintiff-Appellee, v. RICHARD PRINCE, Defendant-Appellant, GAGOSIAN GALLERY, INC., LAWRENCE GAGOSIAN, Defendants-Cross-Defendants-Appellants.

Subsequent History: As Corrected June 5, 2013.

US Supreme Court certiorari denied by, Motion granted by Cariou v. Prince, 134 S. Ct. 618, 187 L. Ed. 2d 411, 2013 U.S. LEXIS 8134 (U.S., Nov. 12, 2013)

Prior History:  [**1] Appeal from a judgment of the United States District Court for the Southern District of New York (Batts, J.) on Plaintiff-Appellee Patrick Cariou's claim that Defendant-Appellant Richard Prince's artworks infringe on Cariou's registered copyrights in certain photographs. We conclude that the district court applied the incorrect standard to determine whether Prince's artworks make fair use of Cariou's copyrighted photographs. We further conclude that all but five of Prince's works do make fair use of Cariou's copyrighted photographs. With regard to the remaining five Prince artworks, we remand to the district court to consider, in the first instance, whether Prince is entitled to a fair use defense.

Cariou v. Prince, 784 F. Supp. 2d 337, 2011 U.S. Dist. LEXIS 29070 (S.D.N.Y., 2011)

Disposition: REVERSED in part, VACATED in part, and REMANDED.


photographs, artworks, transformative, infringing, secondary, paintings, artist, quotation, parody, twenty-five, aesthetic, lozenges, Gallery, prints, license, Museum, weighs, video, landscape, collages, creative, Surfers, message, usurped

Civil Procedure, Summary Judgment, Entitlement as Matter of Law, Genuine Disputes, Copyright Law, Defenses, Fair Use, General Overview, Appeals, Summary Judgment Review, Standards of Review, Civil Infringement Actions, Standards for Granting Summary Judgment, Judicial Review, Constitutional Copyright Protections, Fair Use Determination, Factors