Artist Richard Prince Settles Landmark Fair Use Case

Artist Richard Prince Settles Landmark Fair Use Case

It’s turning into a big week for copyright litigation settlements. They’ve all come without warning, but two that we reported on Tuesday seem to make a lot of sense. Viacom Inc.’s landmark fight with YouTube was a holdover from an earlier era, and Viacom was facing diminishing returns on its second appeal. And why would the Beastie Boys and upstart toymaker GoldieBlox Inc. want to waste more legal bills on a dustup over a viral video?

A third settlement—a truce between famed “appropriation” artist Richard Prince and photographer Patrick Cariou— is a bit harder to explain. The duo still had plenty to fight about, and the plaintiff, Cariou, was back before a seemingly sympathetic judge with respected media industry amici on his side.

Cariou’s lawyers announced the deal on Tuesday in a letter to U.S. District Judge Deborah Batts in Manhattan. The terms of the agreement are confidential.

The settlement resolves what one industry publication called “the art world’s most closely watch lawsuit.” In 2008 Prince unveiled a series of 30 artworks that incorporated Cariou’s photographs of Rastafarians. Prince displayed his pieces at Manhattan’s esteemed Gagosian Gallery, which in turn sold some of them to collectors for a combined $10.5 million. Cariou, who only earned a paltry $8,000 in royalties from a book of his photos, sued Prince and the Gagosian for copyright infringement. That led to a precedent-setting fight over what constitutes a fair use under U.S. copyright laws.

Batts sided with Cariou in 2011, finding that Prince’s works didn’t qualify for fair use protection. Prince had testified during a deposition that he wasn’t trying to comment on the original photographs or imbue them with any new meaning. In Batts’s view, the crucial issue was whether Prince “transformed” Cariou’s original work, and to be transformative a work must “comment on, relate to the historical context of or critically refer back to the original works.”

In a landmark April 2013 decision, the U.S. Court of Appeals for the Second Circuit rejected Batts’s reasoning and ruled that 25 of Prince’s 30 works are protected by the fair use doctrine. The court remanded to the case to Batts to determine whether the remaining five works are infringing.

The Second Circuit ruling was a big blow to Cariou, but the fight wasn’t over. Batts, after all, had sided with Cariou the first time around, and the parties plowed ahead with summary judgment briefing on the remaining five works. (Briefing concluded in January.) Several trade groups signed an amicus brief backing Cariou, including the American Society of Journalists and Authors and the National Press Photographers Association.

Cariou may have feared another defeat—if not at the trial court, then on appeal—and decided to call it a day. It’s also possible that Prince, the wealthier of the two parties, offered Cariou a deal he couldn’t refuse.

In any case, according to Joshua Schiller of Boies, Schiller & Flexner, who represented Prince, his client is happy to have the case behind him. Schiller also praised the Second Circuit’s ruling, telling us that it validated Prince’s use of appropriation as an art form.

Cariou’s lawyer, Daniel Brooks of Schnader Harrison Segal & Lewis, declined to comment except to say that the parties are happy with the settlement.

Note: This story was updated to correct an editing error that identified Joshua Schiller as counsel to Patrick Cariou. Schiller represented Richard Prince.

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