Cariou v. Prince | Litigation Daily | The American Lawyer" /> Cariou v. Prince | Litigation Daily | The American Lawyer" /> Cariou v. Prince" />
 
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Admittedly, we at the Litigation Daily knew very little about celebrated "appropriation artist" Richard Prince before March 2011. That’s when U.S. District Judge Deborah Batts in Manhattan ruled that Prince had misappropriated published photographs of Rastafarians by another artist, Patrick Cariou, in a series of works shown at the Gasosian Gallery and elsewhere. The decision sent shockwaves through the art and intellectual property communities for a few reasons: Batts concluded that artistic appropriation is only fair use if it comments on the original artist’s work or on the culture; she used Prince’s own testimony about his art against him; and she ordered the 30 works at issue to be tuned over to Cariou for possible destruction.

Luckily for Richard Prince, within hours of the decision he had found someone who knew an awful lot about his art—and about copyright fair use too. Joshua Schiller of Boies, Schiller & Flexner—an associate, art collector, and son of name partner Jonathan Schiller—argued Prince’s appeal at the U.S. Court of Appeals for the Second Circuit last May. On April 25, he won a near-total victory that left Prince and many others breathing a big sigh of relief.

Schiller caught up with us the next day via telephone from the Yucatan peninsula in Mexico, where he was attending a friend’s wedding. The conversation, which Schiller conducted with the aid of some banyan trees as a windscreen, has been edited for length and style.

Litigation Daily: I understand you were on the tarmac on the way to Mexico when the Second Circuit decision came down.
Josh Schiller: I was on the plane and they were literally telling me to turn off my phone when the message came. I’d had nightmares for months about missing it, and I just barely had a chance to read the first three pages on my iPhone and send a text message out to the client before we took off. I would have been so disappointed if my client found out and I was in the air and unable to reach him.

LD: How did you wind up taking the case?
JS: The district court ruling was issued at six o’clock on a Friday night, and Richard Prince was in a panic after reading the decision and finding out he had to hand over his artworks within 10 days to be destroyed. I got a call from a mutual friend at six a.m. on Saturday morning, and he said, "Josh, you know my friend Richard Prince just lost this big case last night, do you think you could help him?" [Prince] and I talked for probably an hour on Sunday morning. I told him I was a big fan, that I’d seen his work at the Guggenheim and the Gagosian, and that I’d read the decision and take care of it.

I’ll never forget that he came in to meet me on Monday with this big, black box. It still sits in my office, and it contains all the ephemera that he used to create the series, including cutouts from [Cariou's work]. There was no way for it to be photocopied and faxed or sent on disk for the Second Circuit to consider. But I was able to mention it at the oral arguments because it was sort of the most important piece of evidence in the entire case. It’s a pot of raw ingredients. And I think that the court recognized that these were raw ingredients, and that they had been used in that way, and that the transformation on its face was so clear that any reasonable person would perceive that they had been used to create something different, with a different meaning.

LD: Did you have a strong background with copyright law or fair use before this case?
JS: I would call it an obsession. I was sitting in my father’s office as a freshman at Yale when he got a call about representing Napster, and he didn’t know what it was. Yale shut down access to Napster, and that was when I really started to become interested in copyright issues. I realized that it’s important for people of my generation to be be invested in intellectual properly law because we’re going to really change the landscape.

Mr. Prince always understood what he was doing as a form of free speech, and that’s the way he talks to me about it. I have to translate that in away that makes sense for him and for the law, and fair use is the best way to do that.

LD: Was this the first appeal you’ve argued?
JS: It wasn’t the first I was involved in but it was definitely the first one I argued. It was the client’s choice. He felt strongly that I would be able to speak for a generation of people who could understand the implications of a bad outcome. It’s also a testament to our law firm, that we give people the opportunity to develop a client and a case and to argue it.

My hardest cross examination may have been with David Boies and Jonathan Schiller over a cocktail napkin a year before we were in front of the Second Circuit, because they are a tough audience. It took me about six months to convince them that we were right, and it was a personal achievement of great magnitude.

LD: How did Prince react to the Second Circuit’s ruling?
JS: He was ecstatic. Obviously he would have loved the court to have decided that every one of the works was clearly fair use. [Five of the works were remanded for further consideration.] But the court went a long way in correcting the fundamental basis for the district court’s decision, which was this idea that any artist would have to jump up and explain what they had meant to do. And that’s a form of censorship because you’re judging that explanation.

The Second Circuit’s ruling is important because it restores a confidence that was taken away by the district court’s opinion. It gives instruction to institutions and artists that they don’t have to explain themselves. It also affirms a couple of important things: One, the courts are not interested in destroying original works of art. That’s not going to happen. And the court gave great guidance on how to look at the works, and how a fact-finder can determine whether a work is transformative for the purpose of determining fair use.

LD: Do you have any sympathy for Cariou, as the artist who claims his work was stolen?
JS: I can understand if he has a desire to market his works, and he has the right, but I don’t think that’s been inhibited in any way. His desire to restrain fair use, on the other hand, that’s a kind of censorship. I think anyone who’s willing to go out and share their artwork with the world and publish it and distribute it should be willing to take a risk of people using it in ways that were unanticipated–and not necessarily desirable. That’s reality. That’s how the culture changes, not necessarily in good or bad ways.

(Read more about the Second Circuit ruling from our colleagues at New York Law Journal. The Litigation Daily previously covered the case here and here.)

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