What Prince v. Cariou Can Teach Us About Fair Use and Appropriation Art
The 2013 Prince v. Cariou, Appellate Court decision expanded the defense of fair use to encompass appropriation art even when it does not relate to or comment on the original work, so long as the new work adds sufficient new expression to the original work. The 2013 decision was a big win for appropriation artists like Richard Prince. But what is the impact of the Appellate Court’s decision on the doctrine of fair use and its application going forward?
To the law, appropriation art constitutes copyright infringement for which only minor exceptions are allowed through the defense of fair use.
Appropriation Art is defined by the incorporation of recognizable visual images into new works of art.  Appropriation artists often incorporate well-known images and place them in unfamiliar contexts in order to comment on the meaning of the original artwork. Id. The problem is that the underpinnings of appropriation art and intellectual property law are fundamentally at odds, and the law effectively silences this sort of artistic expression.
Insofar as the Copyright Act was enacted to promote the “progress of science and useful arts,” the law arguably offends its purpose by preventing this sort of creation of new expression from existing works (assuming that appropriation art contributes to the intellectual enrichment of the public). On the other hand, if copyright law enabled artists to borrow from pre-existing works with impunity, the law would undercut the artist’s ability to exploit their artwork, and therefore undermine copyright law’s underlying economic rationale.
The doctrine of fair use offers appropriation artists some protection. Before Prince v. Cariou, the doctrine of fair use was interpreted narrowly; it protected the borrowing of original works for research, commentary, critique, and educational purposes. In District Court,the problem with Prince’s artwork was that Prince did not bother to address the original work in terms of how the existing work contributed to the new work’s expression (based on Prince’s testimony that he was not trying to communicate anything).  The District Court for the Southern District of New York determined that Prince’s Canal Zone collages infringed on Prince’s registered copyrights in his photographs.
Richard Prince v. Patrick Cariou – The Appeals Court expands the scope of fair use in favor of appropriation artist Richard Prince.
Cariou v Prince – The Background Facts
In 2000, Cariou published Yes Rasta, a compilation of photographs he had captured while living among Rastafarians in Jamaica. In 2007, Prince displayed Canal Zone at a gallery in New York. Prince’s Canal Zone collage incorporated 35 of Cariou’s images, cut up and altered with painted “lozenges” covering facial features. The collage was pasted on a wooden board. Prince did not obtain Cariou’s permission to use his images. In 2008, Prince created 29 additional artworks in the Canal Zone series. Each work used Cariou’s images to varying degrees.
In some of his artworks, Prince significantly modified Cariou’s photographs. For example, in the James Brown Disco Ball collage, Prince painted a canvas and layered multiple appropriated photographs over each other to create a new image. Prince also tinted and enlarged the photographs.
However, Cariou’s photograph is readily discernible in Prince’s Graduation collage. Prince used the entire photograph and modified it by simply obscuring the subject’s face with blue “lozenges” and by adding a blue electric guitar. The picture is also tinted blue, and the background is in softer focus that it is in the original image.
The Court also determined that all but 5 of Prince’s artworks were entitled to the defense of fair use: Graduation, Canal Zone (2007), Canal Zone (2008), Mediation, and Charlie Company.
The Appellate Court considers whether Prince’s artwork is transformative (a factor weighing heavily in favor of fair use) – Did the collages sufficiently alter Cariou’s images such that Prince’s artwork gave the original work new expression?
The Appeals Court determined that the District Court erroneously applied the 1976 Copyright Act’s preamble, which is merely illustrative of the sort of uses that Congress commonly determined to be fair uses (criticism, comment, news reporting, teaching, scholarship, and research). The Appellate Court pointed to the Act’s incorporation of “such as” language to support their conclusion that the preamble did not intend to limit the fair use defense to the enumerated categories. 
The Appellate Court concluded that the proper fair use analysis considers whether or not the new work altered the original work with “new expression, meaning, or message.” The proper test entails considering whether a reasonable observer would find the work transformative after a side-by-side comparison. A use can be fair even if it doesn’t comment on or criticize the existing works.
Looking at the artworks side by side, the court determined that Prince’s artwork gave Cariou’s photographs new meaning and character. Also, that the respective messages were communicated in distinctively different methods – unlike the “serene” landscape photographs that Cariou took, Prince’s work was “jarring and provocative.”
The ruling is also significant in that it removed the artist’s intentions for incorporating raw materials into his work from the fair use analysis. Transformative use can be found where the new work’s expression and presentation are fundamentally different from the existing works. Unlike the District Court, the Appellate Court did not pay attention to Prince’s testimony about his artwork, focusing instead on how the reasonable observer would perceive the two works.
BUT, Prince v. Cariou left a lot of questions unanswered – most importantly, how do future courts determine which artworks are transformative and entitled to a fair use defense?
While the Appellate Court’s 2013 decision is also applauded for overturning the District Court’s verdict, which had the propensity to significantly chill artistic expression,  the Appellate Court’s decision, in favor of fair use, has been criticized for failing to provide clear guidelines for artists and creators on the defense of fair use. The proposed transformative use test – which considers whether the works’ expressions are fundamentally different – gives a lot of weight to the observer’s subjective inquiry about what the two works purport to express. (Contrast this to the essentially categorical approach to fair use that existed before Cariou). The subjective nature of the transformative use test might make it too hard for artists to be able to tell when they are sufficiently transforming an existing work.
Prince v. Cariou was proclaimed to be a win for artists because it was thought to protect artistic expression. But if the fair use defense is so unpredictable that artists elect to self-censor instead of risk liability, then is the decision still a win?
 Prince argues that his photographs were transformative and did not violate Cariou’s copyright. District Court “imposed 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 entitled to a fair use defense.
 Appellate Court Opinion here: http://www.ca2.uscourts.gov/decisions/isysquery/65b7b90c-6ee3-407f-83ac-8c2990efec8c/1/doc/11-1197_complete_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/65b7b90c-6ee3-407f-83ac-8c2990efec8c/1/hilite/