Transformative Use Won’t Be Reviewed by the US Supreme Court

The Supreme Court has declined to accept review of a case from a photographer, Patrick Cariou who said that painter Richard Prince violated his copyrights with paintings and collages based on the photographer’s published works.

The November 12 decision not to accept certiorari on Tuesday refused to hear an appeal from a decision of the US Court of Appeals for the Second Circuit. Cariou, the plaintiff,  said Prince used pictures that were taken by Cariou for his book “Yes, Rasta.”

Cariou took the pictures during six years he lived with Rastafarians in Jamaica. Prince altered and incorporated several of the photographs in a series of paintings and collages titled “Canal Zone,” exhibited in 2007 and 2008.

But the federal courts said Prince transformed most of the pictures enough so that Prince’s art could be considered a “fair use” of Cariou’s work. The Supreme Court refused to reconsider that decision.

The Second Circuit said that the standard for determining fair use depended on whether an observer would find the new use transformative of the original. It said that Prince’s manipulations of Cariou’s photographs met that test in the majority of the paintings because they presented a “crude” aesthetic that was different from Cariou’s “serene” work.

It also said that Prince’s paintings did not need to comment on Cariou’s in order to be transformative. Prince had previously testified that he did not intend to comment on the photographs, and that testimony played a large part in the district court’s decision, which had ruled in favor of Cariou.

Some have criticized The Second Circuit’s decision has been criticized by many lawyers who assert that it does not provide them with clear guidance in copyright questions. These criticisms fall into the trap often seen in fair use cases where there is a perceived need to quantify what can and cannot be appropriated before deciding whether an infringement has occurred. Cariou’s lawyer had asked the Supreme Court to review the appellate court’s standard, which he characterzed as an “I know it when I see it” approach that is “necessarily subjective, arbitrary and unworkable”

The 2nd Circuit opinion is a thoughtful approach to fair use and transformation, and it makes sense for the Supreme Court to let it stand.  Little to be gained from a High Court review.



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