All of the strum and drang of the Shepard Fairey Obama Hope case–in which the street artist admitted to manipulating evidence in the Associated Press’s suit claiming he used an AP photo without permission–obscured the truly fascinating question at the heart of the dispute: What is fair use for an artist whose work involves the manipulation of images created by someone else? That question will now get a full airing in a copyright appeal by the painter and photograph Richard Prince, who this week hired Boies, Schiller & Flexner to work on his appeal of last Friday’s devastating infringement ruling that orders him to surrender all work in which Prince makes unauthorized use of photographs from the book Yes, Rasta.

Prince is a celebrity artist who over the years has exhibited his work at the Guggenheim, created an album cover for Sonic Youth, and sold paintings for millions of dollars. But on Friday, Manhattan federal district court judge Deborah Batts ruled that works from Prince’s Canal Zone exhbition misappropriate the Yes, Rasta photographs of Patrick Cariou.
Cariou and his lawyer, Daniel Brooks of Schnader, Harrison, Segal & Lewis, raised the infringement allegations in a December 2008 complaint. Prince, represented by Steven Hayes of Hanly Conroy Bierstein Sheridan Fisher & Hayes, countered that his use of the Yes, Rasta photographs fell within the fair use doctrine. But Judge Batts, ruling on cross motions for summary judgment, said Prince could not assert fair use because the 28 painting from his Canal Zone exhibition do not consistently transform Cariou’s photos. The judge ordered Prince to stop selling the work and hand over the art and everything related to it to Cariou by next Monday. She also ordered him to inform everyone who has already bought a Canal Zone painting that it is illegal to display the work. According to the London Guardian, at least 15 works from the Canal Zone exhibition, worth more than $18 million, are in private hands.

“[The ruling] lays to rest the argument that has been advanced in some quarters that appropriation artists enjoy almost an exemption from the copyright laws and a very relaxed version of the fair use doctrine,” said Cariou counsel Brooks.

In the wake of the ruling Prince has retained Boies Schiller for an appeal to the U.S. Court of Appeals for the Second Circuit. Boies Schiller partners George Carpinello and Eric Maurer and associate Josh Schiller will work with Hayes of Hanly Conroy. Schiller told us Prince first contacted him about the appeal last weekend, on a referral from a mutual friend. Boies Schiller is no stranger to art litigation; the firm recently represented The Andy Warhol Foundation in a dispute over its authentication policies.

Schiller said the appeal will reopen the fair use issue. “The court’s decision and injunction has narrowed appropriation and transformative use in artwork in what may be an unprecedented way,” Schiller told us.

Cariou has claimed that he is entitled to all of the approximately $18 million Prince and his co-defendants, the Gagosian Gallery and its owner, Lawrence Gagosian, have realized from the sale of the infringing paintings. Judge Batts has scheduled a May 6 conference on such issues as damages and attorneys fees.