Prof. Rodney A. Smolla, President, Furman University
June 2, 2011

Richard Prince is a well-known “appropriation artist.”  As the phrase suggests, Prince “appropriates” the works of others to create his own artistic works.  His efforts have been successful; his works have been shown at many museums and galleries, including a solo show at the Guggenheim Museum in New York.

When Prince appropriated the photographs of professional photographer Patrick Cariou, however, the result was copyright infringement suit.  In Cariou v. Prince,1 recently decided by Federal District Judge Deborah Batts in the Southern District of New York, the entire artistic genre of “appropriation art” was placed on trial.

The case involved photographs taken over a six-year period by Cariou of Rastafarians in Jamaica.  Cariou published a book of the photos, entitled Yes, Rasta.  The book contained photographs of individual Rastafarians in Jamaica and Jamaican landscape scenes.  Prince initially appropriated Cariou’s photographs by tearing some 35 photos from the book Yes, Rasta and attaching them to a wooden backer board.  Prince then painted over some portions of the 35 photos.  In some cases he appropriated only portions of Cariou’s photographs; in others he used them in their entirety.  The result was a college he entitled “Canal Zone.”

Prince’s “Canal Zone” appropriation art was first displayed at the Eden Rock Hotel in St. Barts.  Prince went on to create 29 paintings in his “Canal Zone” series, 28 of which involved images taken from Yes, Rasta.

In response to Cariou’s claim that the appropriation of his photographs constituted copyright infringement, Prince argued that his entire artistic technique was a “fair use” which required the use of the “raw ingredients” of others, which he used “to get as much fact” into his works as possible and reduce “the amount of speculation.”  He claimed to have no interest in the original meaning of the photographs he uses.  He did not intend to comment on any aspects of the original works or on the broader culture.  Rather, he conceived of his paintings as homage to painters such as Picasso, Cezanne, Warhol, and de Kooning.  He sought to comment on the equality of the sexes through what he regarded as the “three relationships in the world,” which he described as “men and women, men and men, and women and women.”

The opinion by Judge Batts wisely rejected Prince’s asserted fair use defense.  Judge Batts reasoned that Prince’s use of Cariou’s photographs was not “transformative” in the sense required by copyright law.  Nothing in Prince’s “Canal Zone” work was intended to comment on Cariou’s photographs.  Indeed, Prince appeared largely agnostic toward the meaning of Cariou’s photographs.

Prince’s appropriation treated Cariou’s works as simple “raw ingredients” for his own creative efforts.  If the “raw ingredients” defense were enough to carry the day on fair use, however, virtually any appropriation of a prior artist’s work would be deemed a “fair use” merely because the appropriator also possessed an artistic purpose.

Judge Batts held that Prince’s appropriation of Cariou’s photos was not transformative, because Prince was not commenting on the photos themselves, but merely using them as the raw material for his own work, an “appropriation” that constituted infringement, even if it also constituted art.