How Much Is Too Much? Transformative Works vs. Derivative Works: Photographer Wins Appropriation Art Copyright Case

Patrick Cariou, a professional photographer won his case in District Court in New York against well-known appropriation artist Richard Prince and the Gagosian Gallery after several of Cariou’s pieces were appropriated without consent in Prince’s “Canal Zone” series showing at the Gagosian in 2008.

Prince admits to appropriating a total of 41 photographs from Cariou’s book, “Yes, Rasta” published in 2000, for his show but claimed the “fair use” defense, citing that his work was sufficiently transformative to be deemed a new work of art. The District Court disagreed. Judge Deborah Batts, granted a Motion for Summary Judgment in favor of Cariou on the issue of copyright infringement and ordered Prince to deliver all infringing copies of the work for impounding and destruction.

Embodied in Section 107 of the 1976 Copyright Act are four elements courts must consider when determining whether fair use is an adequate and applicable defense: (1) the purpose and character of the work (i.e. the extent to which the work is transformative, not merely derivative of a earlier work), (2) the nature of the copyrighted work, (3) the amount and substantiality of the portion used in relation to the copyrighted work as a whole, and (4) the effect of the use upon the potential market for or value of the copyrighted work.

The heart of this case focused on the first element and examining whether Prince’s work was merely derivative of the original photos or transforms them. While the Defendants argued use of copyrighted materials as “raw ingredients” when creating “appropriation art” is always transformative and fair use, the Judge disagreed stating there was no precedent that would deem this use fair absent transformative comment on the original work.

The preamble of Section 107 describes certain types of works that fit within the purpose of fair use, such as criticism, comment, news reporting, teaching scholarship or research. The four factors are to be considered in examining the purpose. Courts have distinguished infringing derivative works from transforming fair use by requiring that the new work must “supersede the objects of the original creation…altering the first [work] with new expression, meaning or message.” A derivative work is one that merely “recasts, transforms, or adapts an original work into a new mode of presentation.”

The Judge’s analysis highlights the distinction between a derivative work that requires consent from the underlying copyright owner and a transformative work in situations where an artist appropriates the work of another artist’s as the “raw ingredients” for their own work. As the term “transforms” is included in the definition of a derivative work, if the new work is absent any comment on the original or on the broader culture associated with the underlying art, it will be infringing. To hold otherwise would be eviscerate the original artist’s right to authorize derivative works. There would be no need for the distinction and no limitation on how one artist can appropriate the aesthetic value of another artist’s work.

A redefinition of the fair use defense as sought by Prince and his gallery would create a level of disrespect to the original artist’s work because it would promote a devaluation of the art as its only seen as “ingredients” to “play with” in the creation of a new piece. Their work would have no more value than the cloth of a designer before they create fashion design or paint to a painter before it graces the canvas. As Prince testified that he did not “really have a message” in using the photographs, the judge ruled there was little to no transformative intent.

As the history of the fair use defense makes evident, the doctrine calls for a case-by-case analysis. But if the applicability of the fair use defense hinges on whether the artist has the intent to create a new message, why should caveats exist for “appropriation art” that do not exist in other mediums?