for Amicus The Andy Warhol Foundation for the Visual Arts.
Joseph C. Gratz, Durie Tangri, LLP, San Francisco, CA; Oliver Metzger, Google Inc., Mountain View, CA, for Amicus Google Inc.
Clifford M. Sloan, Bradley A. Klein, Skadden, Arps, Slate, Meagher & Flom LLP, Washington, DC, for Amici The Association of Art Museum Directors, The Art Institute of Chicago, The Indianapolis Museum of Art, The Metropolitan Museum of Art, The Museum of Modern Art, Museum Associates d.b.a. Los Angeles County Museum of Art, The New Museum, The Solomon R. Guggenheim Foundation, The Walker Art Center, and The Whitney Museum of American Art.
Michael Williams, Dale M. Cendali, Claudia Ray, Kirkland & Ellis LLP, Washington, DC, for Amici American Society of Media Photographers, Inc., and Picture Archive Council of America.
Before: B.D. PARKER, HALL, and WALLACE,[* 1] Circuit Judges.
B.D. PARKER, J., delivered the opinion of the Court, in which HALL, J., joined. WALLACE, J., filed an opinion concurring in part and dissenting in part.
BARRINGTON D. PARKER, Circuit Judge:
In 2000, Patrick Cariou published Yes Rasta, a book of classical portraits and landscape photographs that he took over the course of six years spent living among Rastafarians in Jamaica. Richard Prince altered and incorporated several of Cariou’s Yes Rasta photographs into a series of paintings and collages, called Canal Zone, that he exhibited in 2007 and 2008, first at the Eden Rock hotel in Saint Barthélemy (“St. Barth’s”) and later at New York’s Gagosian Gallery.[1] In addition, Gagosian published and sold an exhibition catalog that contained reproductions of Prince’s paintings and images from Prince’s workshop.
Cariou sued Prince and Gagosian, alleging that Prince’s Canal Zone works and exhibition catalog infringed on Cariou’s copyrights in the incorporated Yes Rasta photographs. The defendants raised a fair use defense. After the parties cross-moved for summary judgment, the United States District Court for the Southern District of New York (Batts, J.) granted Cariou’s motion, denied the defendants’, and entered a permanent injunction. it compelled the defendants to deliver to Cariou all infringing works that had not yet been sold, for him to destroy, sell, or otherwise dispose of.
Prince and Gagosian principally contend on appeal that Prince’s work is transformative and constitutes fair use of Cariou’s copyrighted photographs, and that the district court imposed an incorrect legal standard when it concluded that, in order to qualify for a fair use defense, Prince’s work must “comment on Cariou, on Cariou’s Photos, or on aspects of popular culture closely associated with Cariou or the Photos.” Cariou v. Prince, 784 F.Supp.2d 337, 349 (S.D.N.Y.2011). We agree with Appellants that the law does not require that a secondary use comment on the original artist or work, or popular culture, and we conclude that twenty-five of Prince’s artworks do make fair use Cariou’s copy-
- ↑ *The Honorable J. Clifford Wallace, United States Circuit Judge of the United States Court of Appeals for the Ninth Circuit, sitting by designation.
- ↑ We refer to Gagosian Gallery and its owner Lawrence Gagosian collectively as “Gagosian” or the “Gallery.”
