More About Prince v. Cariou

Quick follow-up on a case I wrote about last week: Prince et al. v. Cariou, case number 11-1197.

That’s the case involving appropriation artist Richard Prince whose work involves creating collages and paintings using other people’s photographs.

Now two Photography industry trade groups (the American Society of Media Photographers Inc. and The Picture Archive Council of America Inc.) have filed amicus briefs arguing that the ruling against Mr. Prince should stand. Not surprising as the trade groups represent photographers and image-licensors.

In a nutshell, the groups argue that an overturning of the lower court’s ruling (finding copyright infringement on the basis that the fair-use doctrine not apply to Prince's use of photographer Patrick Cariou's images in his work) would harm photographers and those who lawfully license out their images, thus posing a threat to their members’ livelihood.

They also put forth the old saw: our members will stop creating new works. I never buy this argument, and neither will any of you if you are creators yourself. The fact is that artists make art because we compelled to do so, not because we are paid for it. It comes from the inside out.

Might a reversal by the Second Circuit ruin the photags’ livelihood? I doubt it, but I do agree that they could lose some money.

In an event, and just to even the playing field, a number of notable museums and the Andy Warhol Foundation have filed an amicus briefs on behalf of Prince. The museums argue that a reversal could deter museums from acquiring and displaying important works. Maybe. Or increase their insurance premiums.

The Andy Warhol Foundation also argued that the lower court’s application of the fair-use doctrine could have a chilling effect the creation of new artworks. Really? See my comment above. Forget the “Art World,” it seems everyone here has entered “Hyperbole World.”

In any event, that’s the news for now. Now back to work!


Jonathan Pink is an intellectual property attorney resident in the Los Angeles and Orange County offices of Bryan Cave, LLP. He specializes in copyright, trademark and business litigation. He can be reached at jonathan.pink@bryancave.com.