did they finalize any other details about the possible future show.
At some point during the Canal Zone show at Gagosian, Celle learned that Cariou’s photographs wert “in the show with Richard Prince.” Celle then phoned Cariou and, when he did not respond, Celle mistakenly concluded that he was “doing something with Richard Prince …. [Maybe] he’s not pursuing me because he’s doing something better, bigger with this person…. [H]e didn’t want to tell the French aid I’m not doing it with you, you know, because we had started a relation and that would have been bad.” Celle Dep. 88:15–89:7, Jan. 26, 2010. At that point, Celle decided that she would not put on a “Rasta show” because it had been “done already,” and that any future Cariou exhibition she put on would be of photographs from Surfers. Celle remained interested in exhibiting prints from Surfers, but Cariou never followed through.
According to Cariou, he learned about the Gagosian Canal Zone show from Celle in December 2008. On December 30, 2008, he sued Prince, the Gagosian Gallery, and Lawrence Gagosian, raising claims of copyright infringement. See 17 U.S.C. §§ 106, 501. The defendants asserted a fair use defense, arguing that Prince’s artworks are transformative of Cariou’s photographs and, accordingly, do not violate Cariou’s copyrights. See, e.g., Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 578–79, 114 S.Ct. 1164, 127 L.Ed.2d 500 (1994). Ruling on the parties’ subsequently-filed cross-motions for summary judgment, the district court (Batts, J.) “impose[d] a requirement that the new work in some way comment on, relate to the historical context of, or critically refer back to the original works” in order to be qualify as fair use, and stated that “Prince’s Paintings are transformative only to the extent that they comment on the Photos.” Cariou v. Prince, 784 F.Supp.2d 337, 348–49 (S.D.N.Y.2011). The court concluded that “Prince did not intend to comment on Cariou, on Cariou’s Photos, or on aspects of popular culture closely associated with Cariou or the Photos when he appropriated the Photos,” id. at 349, and for that reason rejected the defendants’ fair use defense and granted summary judgment to Cariou. The district court also granted sweeping injunctive relief, ordering the defendants to “deliver up for impounding, destruction, or other disposition, as [Cariou] determines, all infringing copies of the Photographs, including the Paintings and unsold copies of the Canal Zone exhibition book, in their possession.” Id. at 355.[1] This appeal followed.
DISCUSSION
I.
“We review a grant of summary judgment de novo. See Blanch v. Koons, 467 F.3d 244, 249–50 (2d Cir.2006). The well known standards for summary judgment set forth in Rule 56(c) apply. See Fed.R.Civ.P. 56. “Although fair use is a mixed question of law and fact, this court has on numerous occasions resolved fair use determinations at the summary judgment stage where … there are no genuine issues of material fact.” Blanch, 467 F.3d at 250 (quotation marks and brackets omitted); see also Harper & Row, Publishers, Inc. v. Nation Enters., 471 U.S. 539, 560, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985); Castle Rock Entm’t, Inc. v. Carol Publ’g Grp., Inc., 150 F.3d 132, 137 (2d Cir.1998). This case lends itself to that approach.
- ↑ At oral argument, counsel for Cariou indicated that he opposes the destruction of any of the works of art that are the subject of this litigation.
