- Court holds that defendant’s use of plaintiff’s photographs to create “appropriation art” is not a fair use because it does not comment on the original photographs and is not transformative; court also holds that gallery that exhibited and sold defendant’s “appropriation art” is directly, vicariously and contributorily liable for copyright infringement.
Cariou sued Prince for direct copyright infringement, and sued the Gagosian Gallery, which represents Prince and markets his work, for direct, vicarious, and contributory copyright infringement.
Defendants argued that use of copyrighted work in “appropriation art” is per se fair use, but the court disagreed. It then applied the four-factor fair use analysis and held that all four factors weighed against a finding of fair use.
The first fair use factor is the purpose and character of the use. After noting that there would be no practicable boundary to the fair use defense if any infringement could be justified solely on the basis of some claim to a higher or different artistic use, the court determined that Prince’s collages were “transformative” only to the extent that they commented on the plaintiff’s photographs. Turning to the evidence, the court concluded that Prince did not have any such purpose.
Regarding the commerciality prong of the first fair use factor, the court noted that the Gagosian Gallery sold eight of defendant’s collages for over $10 million, with 60% going to Prince and 40% going to the Gagosian Gallery, and sold over $6,000 worth of exhibit catalogues. Based on these sales, the court concluded that defendants’ use of plaintiff’s photographs was substantially commercial.
Turning to the bad faith prong, the court found that Prince’s bad faith “was evident.” Among other things, the court noted that Prince’s employee contacted the publisher of Yes, Rasta to purchase additional copies of the book, but that Prince never sought permission to use the photos contained therein legitimately. It also found that the Gagosian Gallery acted in bad faith by failing to inquire into the legitimacy of Prince’s use of the photos, and by ceasing to commercially exploit the collages after receiving plaintiff’s cease-and-desist letter.
The second fair use factor is the nature of the copyrighted work. The court held this factor weighed against a finding of fair use because plaintiff’s photographs are “highly original and creative artistic works and . . . fall within the core of the copyright’s protective purposes.”
The third fair use factor is the amount and substantiality of the portion of the plaintiff’s photographs that was used. Noting that in a number of his collages Prince appropriated entire photographs, and that in the majority of them he appropriated the central figures depicted in them, the court found this factor weighed “heavily against” a finding of fair use.
The fourth fair use factor is the effect of the defendants’ use of the plaintiff’s work on the potential market for or value of the plaintiff’s work. After noting that “a gallery owner had discontinued plans to show Yes, Rasta photographs, and to offer them for sale to collectors, because she did not want to appear to be capitalizing on Prince’s collages and did not want to show work which had been ‘done already’ at the nearby Gagosian Gallery,” the court concluded that the market for the plaintiff’s photos had been usurped.
Finding that all four fair use factors weighed against a finding of fair use, the court granted summary judgment for the plaintiff.
With respect to the Gagosian Gallery, the court also found it directly, vicariously and contributorily liable for copyright infringement because it exhibited the collages; reproduced the collages in the an exhibit catalogue; supervised Prince’s work “or at the very least [had] the right and ability (and perhaps even responsibility) to ensure that Prince obtained” appropriate licenses; and was “well aware of,” and had capitalized on, “Prince’s reputation as an appropriation artist who rejects the constricts of copyright law.”