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One hundred years ago, Picasso produced Bottle of Vieux Marc, Glass, Guitar and Newspaper, a collage featuring an old newspaper clipping. Six years later, Marcel Duchamp drew a moustache and goatee on a postcard reproduction of the Mona Lisa. Critics consider these early examples of appropriation art—works like Andy Warhol’s soup cans or silkscreened photographs of Marilyn Monroe that incorporate photographs, images or objects produced by others in a new creation. But when the preexisting work is copyrighted, may its creator prevent the appropriation or charge for the privilege? In Cariou v. Prince, 2013 WL 1760521 (2d Cir. April 25, 2013), a Second Circuit panel recognized generous protection for creators of appropriation art under the copyright doctrine of fair use, largely rejecting a challenge to the work of Richard Prince, a prominent appropriation artist. Cariou illustrates the flexibility—and unpredictability—of the fair use defense.

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